The People v. Trevor Anderson

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 29

The People &c.,

Respondent,

v.

Trevor Anderson,

Appellant.

A. Alexander Donn, for appellant.

Terrence F. Heller, for respondent.

ABDUS-SALAAM, J.:

Defendant Trevor Anderson was convicted, upon a jury

verdict, of attempted murder in the second degree (Penal Law §§

110.00, 125.25 [1]) and criminal possession of a weapon in the

second degree (Penal Law § 295.03 [1][b]). Defendant argues that

he was deprived of a fair trial by the prosecutor's use of

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PowerPoint slides during summation, and that defense counsel was

ineffective for failing to object to the use of the slides.

Defense counsel, who objected to one of the PowerPoint slides,

was not ineffective for failing to challenge the others, as the

vast majority were not objectionable.

I.

According to the People's proof at trial, on March 14,

2010, on a Brooklyn street, defendant approached Erick Brown-

Gordon, who was dating defendant's ex-girlfriend Diana Perez, and

shot him twice in the abdomen. When Brown-Gordon turned around

and tried to flee, defendant shot him twice more, in the back.

Defense counsel argued at trial that Perez and Brown-Gordon were

not credible witnesses and had falsely identified defendant.

The Appellate Division rejected defendant's challenges

to his conviction and affirmed the judgment (130 AD3d 1055 [2d

Dept 2015]). A Judge of this Court granted defendant leave to

appeal (26 NY3d 1162 [2016]). We now affirm.

II.

In People v Ashwal (39 NY2d 106 [1976]), this Court

explained that it is "fundamental" that counsel must stay within

"the four corners of the evidence" during summation and that the

prosecutor "may not refer to matters not in evidence or call upon

the jury to draw conclusions which are not fairly inferable from

the evidence" (id. at 109 [internal citations omitted]; see also

CJI2d[NY] Pre-Summation Instructions ["summations provide each

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lawyer an opportunity to review the evidence and submit for (the

jury's) consideration the facts, inferences, and conclusions that

they contend may properly be drawn from the evidence"]). The

PowerPoint slides used by the People in this case were consistent

with these principles. As we observed in People v Santiago (22

NY3d 740, 751 [2014]), PowerPoint "slides depicting an already

admitted photograph, with captions accurately tracking prior []

testimony, might reasonably be regarded as relevant and fair []

commentary on the [] evidence, and not simply an appeal to the

jury's emotions."

At bottom, a visual demonstration during summation is

evaluated in the same manner as an oral statement. If an

attorney can point to an exhibit in the courtroom and verbally

make an argument, that exhibit and argument may also be displayed

to the jury, so long as there is a clear delineation between

argument and evidence, either on the face of the visual

demonstration, in counsel's argument, or in the court's

admonitions. We reject defendant's position that trial exhibits

in a PowerPoint presentation may only be displayed to the jury in

unaltered, pristine form, and that any written comment or

argument superimposed on the slides is improper. Rather,

PowerPoint slides may properly be used in summation where, as

here, the added captions or markings are consistent with the

trial evidence and the fair inferences to be drawn from that

evidence. When the superimposed text is clearly not part of the

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trial exhibits, and thus could not confuse the jury about what is

an exhibit and what is argument or commentary, the added text is

not objectionable. The slides, in contrast to the exhibits, are

not evidence. The court properly instructed the jury that what

the lawyers say during summations is not evidence, and that in

finding the facts, the jury must consider only the evidence. In

this case, as was appropriate, the jury was told that the

physical exhibits admitted into evidence would be made available

to them, while the slides were not supplied to the jury during

deliberations.

Given the paramaters of the permissible use of

PowerPoint slides in summation, counsel was not ineffective for

failing to object. For example, some of the slides were pictures

of exhibits with captions or numbers inserted to highlight the

relevant portion of those exhibits. Two slides showed a portion

of the victim's medical records which included a diagram

depicting the location of four wounds. One slide showed the

enlarged diagram, with superimposed text reading "Two Gun Shot

Wounds to front" and "Two Gun Shot Wounds to back." That text

accurately reflected the information in the exhibit. Another

slide showed the same diagram, with numerals on each of the

respective markings representing the four wounds. Defendant

asserts that the People improperly altered the medical records to

reflect their theory that the victim was shot four times, where

the records purportedly show that he was shot twice. However,

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the medical records are not clear as to whether Brown-Gordon was

shot twice and sustained four wounds (i.e, one entrance and one

exit wound per shot), or was shot three or four times. The text

inserted by the People referred to wounds, not shots, and the

prosecutor argued, consistent with Brown-Gordon's testimony, that

he had been shot four times. These slides, and the oral argument

by the prosecutor, were fair comment on the evidence and the

reasonable inferences to be drawn from that evidence.

Defendant also argues that his counsel was ineffective

for failing to object to slides that showed photographs, received

into evidence, of the street on which the shooting had occurred.

On two of those slides, the prosecutor had superimposed yellow

circles around street lamps which witnesses had testified had

sufficiently illuminated the street so that they were able to see

defendant. On another slide, there was a superimposed circle

around the location where a testifying police officer said he had

found three shell casings. These added markings did not

misrepresent the evidence.1

Additionally, we reject defendant's argument that

defense counsel was ineffective for failing to object to the

prosecutor's use of a slide that showed defendant's arrest

photograph, which had been received in evidence, surrounded by a

1

The slides that did not display the exhibits but

summarized the evidence at trial were not objectionable, as they

did not "call upon the jury to draw conclusions which are not

fairly inferable from the evidence" (Ashwal, 39 NY2d at 109).

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superimposed circle, with boxes containing text summarizing the

People's theory of the case.2 Defendant argues that this slide

improperly altered the trial evidence and that the text boxes

surrounded defendant's face as if he were a target. In our view,

the added text accurately tracked the witnesses's testimony and

the fair inferences to be drawn from the evidence, and the

placement of the text boxes around defendant's face was "not

simply an appeal to the jury's emotions" (Santiago, 22 NY3d at

751).

Nonetheless, even accepting defendant's position that

this slide was objectionable, the display of this slide alone did

not deprive defendant of a fair trial. Instead, as in Santiago,

"the objection to the PowerPoint presentation that defendant now

raises is not so 'clear-cut' or 'dispositive' an argument that

its omission amounted to ineffective assistance of counsel" (22

NY3d at 751).

Finally, to the extent that the court made a Sandoval

ruling, defendant's claim that the ruling was in error is

unpreserved (see People v Hawkins, 11 NY3d 484, 494 [2008]).

2

The text in the boxes stated "3/14/10 - Armed himself with

a loaded and operable illegal .45 cal handgun"; "Made a series of

calls to Diana immediately before shooting"; "Lay in wait for

Erick-Brown Gordon with .45 cal handgun"; "Fired .45 handgun

twice from less than 8 feet away as Erick faced him"; "Fired .45

handgun twice more as Erick ran from deft"; "His bullets hit

Erick twice in front and twice in back"; "Defendant grabbed Diana

and fled scene"; and "3/24/10 - Erick identified deft as shooter

in line-up."

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Accordingly, the order of the Appellate Division should

be affirmed.

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People v Trevor Anderson

No. 29

RIVERA, J. (dissenting):

The prosecutor's use of digitally edited reproductions

of exhibits to convey inferences and misinformation, as well as

to project defendant's image as the "face of death," exceeded the

bounds of proper summation. A prosecutor may not use altered

copies of exhibits to suggest that the evidence unequivocally

establishes disputed facts or to distract the jury by playing to

emotion. That, however, is what happened here.

The PowerPoint presentation employed by the prosecutor

during summation included a modified version of defendant's

arrest photograph, with the picture of his head at the center of

a symbolic target. This target was surrounded by eight boxes

containing both facts of the case and the prosecutor's inferences

and mischaracterizations of the evidence, all pointing directly

at defendant's face. The reimagining of defendant's likeness --

through a powerful visual medium -- distracted the jury from the

unaltered trial evidence and the relevant facts, and was

accompanied by the prosecutor's verbal statements that appealed

to passion, not reason.

The error was compounded by the prosecutor's showcase

of edited medical exhibits in two additional slides. The slides

of the victim's hospital records contained superimposed words and

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numbers which, in the context of the presentation, misled the

jury as to what the actual exhibits showed in order to suggest

that certain disputed facts were conclusively established at

trial, and to thereby bolster witness testimony. These

alterations were the equivalent of using unadmitted evidence.

The strategic use of technology to display visual

images enhanced the prejudicial impact of the edited

reproductions of these exhibits, and when combined with defense

counsel's failure to object to the offensive PowerPoint slides,

denied defendant a fair trial. Even in the face of earnest

efforts to make the distinction between admitted evidence and

argument clear, overlaying evidence with embedded inferences

presents issues that cannot be overcome through jury instruction.

I would reverse and remit for a new trial.

I.

During summation, the prosecutor may marshal the

evidence so as to persuade the jury of defendant's guilt beyond a

reasonable doubt, based on the People's view of the facts

(CJI2d[NY] Final Instruction--Pre-Summation Instructions; 6 Am

Jur Trials 873; CPL 260.30[9]). The prosecutor may

"comment upon every pertinent matter of fact

bearing upon the questions the jury have to

decide. . . . And although counsel is to be

afforded the widest latitude by way of

comment, denunciation or appeal in advocating

[counsel's cause,] summation is not an

unbridled debate in which the restraints

imposed at trial are cast aside so that

counsel may employ all the rhetorical devices

at [counsel's] command. There are certain

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well-defined limits."

(People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation

marks and citations omitted]). It is a fundamental tenet of our

legal system that the People's "interest . . . in a criminal

prosecution is not that it shall win a case, but that justice

shall be done" and thus while the prosecutor in summation "may

strike hard blows, [the prosecutor] is not at liberty to strike

foul ones" (Berger v United States, 295 US 78, 88 [1935]; People

v Jones, 44 NY2d 76, 80 [1978]).

The cardinal rule is that a summation, whether by the

People or the defense, "must stay within the four corners of the

evidence and avoid irrelevant comments which have no bearing on

any legitimate issue in the case" (Ashwal, 39 NY2d at 109

[internal quotation marks and citation omitted]). In adherence

to this rule, the prosecutor cannot misstate the evidence, or

advance misleading representations to encourage inferences of

guilt based on facts not in evidence (People v Wragg, 26 NY3d

403, 411-412 [2015]). "Above all [the prosecutor] should not

seek to lead the jury away from the issues by drawing irrelevant

and inflammatory conclusions which have a decided tendency to

prejudice the jury against the defendant" (Ashwal, 39 NY2d at

110).

These proscriptions apply to the prosecutor's use of

the original physical exhibit or a technologically-generated

reproduction in summation. I do not accept the majority's rule

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that "a visual demonstration during summation is evaluated in the

same manner as an oral statement" (maj op at 3). Such an

approach ignores the impact of visual aids on the viewer and

assumes that the medium and manner by which ideas are

communicated has no independent effect on the way those ideas are

deconstructed and understood. It also ignores the enhanced

effect of combining imagery with oral commentary.

II.

Every person who relies on visual aids to communicate a

message is likely cognizant of what the science bears out: the

medium of delivery has the potential to powerfully influence the

way the message is heard and retained (see Lucille A. Jewell,

Through a Glass Darkly: Using Brain Science and Visual Rhetoric

to Gain a Professional Perspective on Visual Advocacy, 19 S Cal

Interdisc LJ 237, 293 [2010]). Research shows that pictures are

typically remembered better than words (see Mary Susan Weldon &

Henry L. Roediger, III, Altering Retrieval Demands Reverses the

Picture Superiority Effect, 15 Memory & Cognition 269, 269

[1987]). Indeed, "with visual information, people believe what

they see and will not step back and critically examine the

conclusions they reach, unless they are explicitly motivated to

do so. Thus, the alacrity by which we process and make decisions

based on visual information conflicts with a bedrock principle of

our legal system -- that reasoned deliberation is necessary for a

fair justice system" (Jewell, supra, at 293). This can make the

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use of images at trial particularly problematic when combined

with language, as "annotating images with text . . . exacerbates

the interpretive distortion of images" (Elizabeth G. Porter,

Taking Images Seriously, 114 Colum L Rev 1687, 1755 [2014]).

Particularly troubling in the legal context are recent studies

showing "that photos that relate to, but do not provide any

evidence for, a claim . . . can nudge people towards believing

that the related claims are true, whether they are true or not"

(Eryn Newman & Neal Feigenson, The Truthiness of Visual Evidence,

24 The Jury Expert, 5:1 [Nov 2013]; see also Eryn Newman et al.,

Nonprobative photographs (or words) inflate truthiness, 19

Psychonomic Bulletin & R 969, 973 [2012] [studies have suggested

that "the mere presence of non-probative information such as

photos might rapidly inflate the perceived truth of many types of

true and false claims" and that this effect can last for up to

two days]).1 Furthermore, "images are much more immediately and

tightly linked with emotion than is text," so "while images offer

a wealth of creative and effective communication tools for

lawyers, the very elements that make them persuasive pose dangers

to the integrity of the decisionmaking process" (Porter, supra,

1

For a summary of much of this research and the case law,

see Matthew S. Robertson, Note, Guilty As Photoshopped: An

Examination of Recent Case Law and Scholarship Regarding the Use

of Non-Probative Images in the Courtroom, 55 Washburn LJ 731, 732

(2016).

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at 1755-1756).2

I have previously addressed how visual imagery can be

particularly impactful in summation,

"when 'any argument that drones on for 5 or

10 minutes on any one point, regardless of

how effective its content is, will lose the

jury' (Thomas A. Mauet, Trial Techniques 394

[8th ed 2010]). Visual aids are a welcome

relief since '[b]y the end of the trial,

jurors are looking for new and fresh ways of

receiving evidence and arguments' (id.). The

use of technology at the end of closing

argument may be particularly powerful. As

one commentator has noted, '[t]he right to

the final word has a psychological impact

that makes it a forensic prize' (Siegel, New

York Practice § 397 at 692 [5th ed 2011])."

(People v Santiago, 22 NY3d 740, 754 [2014] [Rivera, J.,

dissenting]). The last side to comment and deploy a visual

presentation of its view of the case therefore gains an edge in

persuading the jury as it commences deliberations. In the end,

if visual tools did not enhance the rhetorical impact of the

spoken word or persuade the viewer of the logic of an advocate's

reasoning, the prosecutor would not take the time to mark up

photos of exhibits, embed those photos with text and images

suggesting defendant's guilt, and present those images in a

PowerPoint slide show, as was done here.

Given the potential that crafted visual demonstrations

2

"Visual presentations may send subconscious messages to

jurors, creating a significant risk that jurors reach verdicts

based on emotionalism and leaps in logic rather than on the facts

in evidence" (Janet L. Hoffman, Visual Advocacy: The Effective

Use of Demonstrative Evidence at Trial, 30 Litigation Journal

[Spring 2011] at 9).

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have to influence the viewer differently and more memorably than

the listener of words spoken without visual accompaniment, in

order to "stay within the four corners of the evidence," a

prosecutor may display an image of an altered exhibit if the

edited version: is intended to assist the jury with its fact-

finding function, as opposed to drawing the jury's attention away

from the relevant issues through prejudicial rhetoric; expresses

information that places the exhibit's relevance in context, such

as how the exhibit relates to the question of defendant's guilt;

accurately and precisely reflects the admitted testimony and

documentary evidence, as in the case of superimposed text of a

direct quote; or draws attention to some relevant aspect of the

exhibit with, for example, arrows, circles, or underlines. Such

overlays do no more than represent and organize the evidence

clearly and in a manner that the prosecutor believes will

ultimately persuade the jury to convict.

By contrast, the prosecutor may not seek to influence

the jury's deliberative process by taking an exhibit, copying or

enlarging it, and then superimposing on the image inferences to

be drawn from the evidence about defendant's guilt. An image of

an exhibit embedded with an inference enhances the risk that

jurors will treat the inference as an undisputed fact, especially

where the image is presented alongside reproductions of other

exhibits that contain superimposed testimony. In that way, the

altered image elevates argument into fact. Allowing such images

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also increases the risk that unreasonable inferences will be

adopted by the jury. Similarly, the prejudicial impact of

inferences that appeal to emotion rather than fact is amplified

when combined with a visual image. While a phrase mentioned once

in passing may not leave an indelible mark or be sufficiently

egregious on its own to sway the jury, the odds that an

inflammatory remark will be noted, remembered, and revisited

during the deliberative process increase when that remark is

presented visually on an edited exhibit (Miriam Z. Mintzer & Joan

Gay Snodgrass, The Picture Superiority Effect: Support for the

Distinctiveness Model, 112 Am J Psychology 113, 113 [1999]

[explaining that pictures are easier to remember than roughly

equivalent denotational words]).

The majority's assertion that a jury knows the added

text is not part of either the trial exhibits or evidence is

unresponsive to the issues presented on this appeal (maj op at

4). We are not asked to assume that a juror could not make this

distinction, but rather to consider the prejudice associated with

overcoming the visual cues. Moreover, it is no answer to state

that the jury only has access to the original exhibits and not

the prosecutor's summation materials when the prosecutor has the

last word and defense counsel cannot respond to the inferences in

the exhibit (compare Siegel, supra, at § 397 ["Plaintiffs are

comforted throughout their summations by the knowledge that the

defendant will not get another chance to address this jury."]).

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Of course, there is no assurance jurors will confirm their

impression of the facts by referring back to the exhibits.

Rather than rely on the judge's instructions to "cure"

the effect of any possible confluence of inference and fact, or

to dispel confusion after the jury has been exposed to the edited

exhibit image, it is simply easier -- and fairer -- to maintain

the separation between exhibits and the prosecutor's inferences.

As Justice Thurgood Marshall noted, "it is quite unrealistic to

believe that instructions to disregard evidence that a jury might

treat in a manner highly prejudicial to a defendant will often be

followed" (Chaffin v Stynchcombe, 412 US 17, 41 [1973] [Marshall,

J., dissenting]). Judge Learned Hand similarly expressed that

under some circumstances a limiting instruction may be "a

recommendation to the jury of a mental gymnastic which is beyond,

not only their powers, but anybody's else [sic]" (Nash v United

States, 54 F2d 1006, 1007 [2d Cir 1932]). As such, it is

preferable to avoid the problem before it is necessary to cure

it. This way the jury will not confuse fact with the

prosecutor's inference or suggestion.

III.

Defendant's arrest photo, taken ten days after the

incident, was admitted into evidence despite no apparent

relevance to the issues. The victim identified defendant, whom

he had met on multiple occasions, as the assailant three separate

times during the trial. During the testimony of a subsequent

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witness, the People offered the photo into evidence as

representative of defendant's appearance on the day of the line

up -- a matter not in dispute. After defense counsel objected on

relevance grounds the judge admitted the photo, stating "if

that's the only problem or objection, I will receive it, and the

jury will find it helpful, or perhaps not."

While "[a]n arrest photograph may be admitted into

evidence in order to establish that a defendant's appearance was

different at the time of the commission of the crime than at

trial" (People v Ahmr, 22 AD3d 593, 594 [2d Dept 2005]), to show

defendant's appearance on the date of the crime (People v

Santana, 162 AD2d 191, 192 [1st Dept 1990]), or for other

identification issues (see People v Richards, 220 AD2d 268, 269

[1st Dept 1995]), when "the complainant and the arresting officer

had no trouble identifying defendant in court, there [i]s no

legitimate need for the prosecutor to offer into evidence

defendant's arrest photographs" (People v Black, 117 AD2d 512,

513 [1st Dept 1986]; see also State v Lazo, 209 NJ 9, 19 [2012]

["(I)f identification is an issue and the State's use of a mug

shot is reasonably related to that issue, an arrest photo may be

admitted only if it is presented in as neutral a form as

possible."]). While the prejudice to the defense from the

admission of an arrest photo is most often related to its

implication that the defendant has a criminal record (see e.g.

United States v Harrington, 490 F2d 487, 490 [2d Cir 1973]),

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there is an additional source of potential prejudice, as when the

photo is unrelated to identification testimony and serves only to

show defendant in a negative light (see Paul Lashmar, How to

Humiliate and Shame: A Reporter's Guide to the Power of the

Mugshot, Social Semiotics, 24(1), 56-87 [2014] [examining the

history and cultural significance of mugshots]).

In defendant's case, the prosecutor relied on the

exhibit twice in summation and not to argue a disputed question

of identification, but for impassioned rhetorical emphasis. An

unedited slide of the exhibit opened the prosecution's PowerPoint

presentation, over which the prosecutor remarked, "[t]hat's the

face of the man that [the victim] told you he saw right before

the defendant shot him." The prosecutor ended his summation with

a highly edited version of the exhibit, one that placed

defendant's head in what appears to be a target. The composition

of the arrest photo, overlaid with an orange circle and text

boxes with arrows pointing at defendant's face, containing

snippets of testimony and the prosecutor's inferences, is clearly

designed to manipulate the jury's reasoned deliberation by

appealing to their emotions and prejudices.

This imagery is reminiscent of cases in which edited

arrest photos were found to be improper summation material

because of superimposed descriptive labels and inferences which

appealed to passion. In re McKague (182 Wash App 1008 [Wash Ct

App Div 1 2014]) involved a prosecutor's slide which featured the

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defendant in the center of a circle with the word "GUILTY"

overlaid over his face. Text surrounded the circle, with each

phrase pointing towards the defendant. The phrases included text

that summarized the trial testimony such as "intended to commit

theft," "during the taking the defendant resorted to force,"

"took can of oysters," etc. The court found that the "slide was

a calculated device employed by the prosecutor to manipulate the

jury's reasoned deliberation and impair its fact finding

function. It substantially undermined [the defendant's] right to

a fair trial" (id.). Similarly, the court sitting en banc in In

re Glasmann (175 Wash 2d 696, 286 P3d 673 [2012]) ordered a new

trial because the prosecutor committed pronounced and persistent

misconduct when he overlaid the phrase "guilty" across

defendant's arrest photo on three separate occasions, as well as

phrases like "do you believe him?" and "why should you believe

anything he says about assault?" (see also State v Walker, 182

Wash 2d 463, 341 P3d 976 [2015]). In State v Walter (479 SW3d

118, 127 [Mo 2016]), the en banc court found overlaying the word

"guilty" over defendant's booking photo amounted to prejudicial

error requiring a new trial (see also Watters v State, 313 P3d

243, 129 Nev Adv Op 94 [2013] [booking photo overlaid with the

word "guilty" used during a PowerPoint in People's opening

statement so prejudicial as to require a new trial]).

The circle around defendant's head, surrounded by

numerous text-filled boxes with arrows pointing towards him, with

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one text box asserting that defendant "[l]ay in wait for [the

victim] with .45 cal handgun," is equivalent to defendant's image

superimposed with the word "guilty" over it. Just as in In re

Glasmann, this imagery, along with a statement not in evidence

that implies defendant's actions were predatory, manifests an

appeal to the passions and prejudice of the jury (175 Wash 2d at

681). The slide is a clear visual communication to the jury that

the defendant is a frightening man whom the state has dedicated

significant resources to target.

The edited exhibit does not even comply with the

majority's rule because the slide is not merely a display of a

verbal argument or the equivalent to pointing at something. The

prosecutor could not physically draw a circle with arrows

pointing at defendant and, significantly, could not

simultaneously have asserted all the statements contained in the

text boxes. That imagery is only possible through the editing of

the exhibit. Moreover, contrary to the majority's claims, the

text in the final slide does not "accurately track[] the

witnesses's testimony and the fair inferences to be drawn from

the evidence" (maj op at 6). The notion that defendant "lay in

wait for" the victim outside is belied by the trial testimony

that he told his ex-girlfriend that he was on his way into the

building. When she tried to dissuade him, he told her if she did

not come out he would go in. Similarly, there was no testimony

at trial to suggest that the victim was shot with an "illegal"

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handgun as the gun was never recovered. Other text boxes present

disputed claims as facts, such as the number of shots and the

distance between the shooter and the victim. The text boxes

blended the facts, inferences, and speculation and did not

present a "clear delineation between argument and evidence" (id.

at 3). Nor does this final slide avoid "an appeal to the jury's

emotions" (id. at 6). The intent of the edited exhibit was laid

bare when, during the display of the slide, the prosecutor

dramatically declared that defendant's image: "was the face of

death on March 14, 2010."3

In addition, the prosecutor's use of slides depicting

edited images of the victim's hospital records was improper

because the slides were misleading. The added text and numbers

appeared to scientifically confirm the victim was shot four

times, twice in the front and then twice in the back, when the

hospital records did not establish the number and order of shots.

This is a further example of why an inference -- here that the

victim was shot four times, twice in the back -- can be confused

as an undisputed fact and should not be superimposed on a

reproduction of an exhibit.

These slides were additionally prejudicial to defendant

because medical documents, like the hospital records here, have

an air of objectivity that can carry significant weight with the

3

Defense counsel's objection to this statement was

overruled.

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jury (see Vella v Commr. of Soc. Sec., 394 Fed Appx 755, 757 [2d

Cir 2010] [medical records considered "objective evidence"]).

The prosecutor used the slides to convey that the victim was shot

four times, and stated that the exhibits were physical evidence

corroborating the victim's testimony to that effect. Thus, the

exhibit was used as objective evidence to bolster the victim's

testimony and undermine the defense's argument that the victim

was not telling the truth.

IV.

The prosecutor exceeded the scope of proper summation

by including in his PowerPoint presentation edited slides

featuring defendant's arrest photo and hospital records that

misrepresented the evidence, misled the jury, and appealed to

emotion. Defense counsel should have objected during summation

(People v Wright, 25 NY3d 769, 780 [2015]). His failure to do so

deprived defendant of meaningful representation, and left

defendant vulnerable to the force of these slides on the jury's

deliberations. There was no strategic reason for counsel's

silence (id.), as he was aware before summations that the

PowerPoint presentation would be -- as counsel described it -- "a

force to be reckoned with." Given the impact of summation,

counsel's failure to object constituted ineffective assistance of

counsel (id.; People v Fisher, 18 NY3d 964, 967 [2012]). For the

reasons I have discussed, the display of these slides, and

defense counsel's failure to object, denied defendant a fair

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trial and was highly prejudicial (People v Baldi, 54 NY2d 137,

147 [1981]; Strickland v Washington, 466 US 668, 686 [1984]).

I dissent.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Abdus-Salaam. Chief Judge

DiFiore and Judges Stein, Garcia and Wilson concur. Judge Rivera

dissents in an opinion in which Judge Fahey concurs.

Decided April 4, 2017

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