Opposition Brief — Angnem Green, Petitioner v. New York

No. 20-6871

IN THE

SUPREME COURT OF THE UNITED STATES

ANGNEM GREEN,

Petitioner,

v.

STATE OF NEW YORK,

Respondent.

______________________________

ON PETITION FROM THE NEW YORK STATE

SUPREME COURT

APPELLATE DIVISION, FOURTH DEPARTMENT

_________________________________________________

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________

James B. Ritts

District Attorney, Ontario County*

Ontario County Courthouse

Canandaigua, New York 14424

(585)396-4010

James.Ritts@ontariocountyny.gov

i

QUESTION PRESENTED

Whether the New York State Supreme Court,

Appellate Division, Fourth Department erred in

finding that the prosecutor’s use of the word

“homeboys,” and his purported emulation of an

African-American voice during summation did not

violate Petitioner’s Constitutional right to a fair trial.

ii

TABLE OF CONTENTS

QUESTION PRESENTED……………..………….….. ii

TABLE OF AUTHORITIES…....................................iv

INTRODUCTION…….................................................1

STATEMENT OF THE CASE..............................……3

REASON TO DENY THE PETITION………………...8

CONCLUSION………………………………………….28

iii

TABLE OF AUTHORITIES

Cases

Page

Bennet v. Stirling, 170 F.Supp.3d 851

(D.S.C. 2016)…………………………………………….13

Commonwealth v. Graziano, 368 Mass. 325 (1975).13

Darden v. Wainwright, 477 U.S. 168 [1986]…………20

Hampton v. State, 88 Miss. 257 [1906]………….14, 15

Herring v. New York, 422 U.S. 853 [1975]…………..19

McFarland v. Smith, 611 F2d 414 (2d Cir 1979)…..12

People v. Alexander, 50 AD3d 816 [2d Dept. 2008]…11

People v. Caminero, 193 AD2d 547 [1st Dept. 1993]

……………………………………………………………..26

People v. Carborano, 301 NY 39 [1950]………………20

People v. Diotte, 63 AD3d 1281 [3d Dept. 2009]…….10

People v. Galloway, 54 NY2d 396 [1981]…………….10

People v. Green, 179 AD3d 1516 [4th Dept. 2020]..2, 7

People v. Guica, 58 AD3d 750 [2d Dept. 2008]………11

People v. Hearns, 18 AD2d 922 [2d Dept. 1963]…...12

People v. Lazzaro, 62 AD3d 1035 [3d Dept. 2009]….20

People v. Ortiz, 39 AD3d 423 [1st Dept. 2007]……...20

People v. Rivera, 73 N.Y.2d 941 [1989]…..……………9

People v. Simpson, 50 AD3d 452 [1st Dept. 2008]….20

People v. Williamson, 267 AD2d 487 [3rd Dept.

1999]………………………………………………………26

Ristaino v. Ross, 424 U.S. 589 [1976]……………...….9

Smith v. Farley, 59 F.3d 659 [7th Cir. 1995]…..16, 25

U. S. ex rel. Haynes v. McKendrick, 481 F.2d 152

[2d Cir. 1973]…………………………………………….11

iv

Cases

Page

U. S. v. Antonelli Fireworks Co., 155 F.2d 631

[2d Cir. 1946]………………………………………..…..10

U. S. v. Doe, 903 F.2d 16, 28 [D.C. Cir. 1990]….19, 27

U. S. v. Lively, 817 F. Supp. 453 [D. Del. 1993]……17

U. S. v. Weiss, 930 F.2d 185, 196 [2d Cir. 1991]…...15

U. S. v. Young, 470 U.S. 1 [1985]………………….…10

U. S. v. Hernandez, 865 F.2d at 927………………....17

Williams v. Brooklyn El. R.R., 126 NY 96 [1981]

…………………………………………………...…5, 19, 20

Statutes

Page

N.Y. Criminal Procedure Law § 470.05(2)…….……...9

N.Y. Penal Law § 220.39[1]……………….…….………3

N.Y. Penal Law § 260.10[1]………………….………….3

Secondary Sources

Merriam-Webster Collegiate Dictionary [11th ed.

2014]………………………………………………………26

v

INTRODUCTION

At trial for drug sales charges, it is alleged that

during summation the prosecutor attempted to

emulate an African-American voice when recounting

the content of phone calls between the Petitioner

Angnem Green and a trial witness. There was no

objection to this at the time. Later in his summation

the prosecutor referred to members of the gallery as

Petitioner’s “homeboys.” There was a timely objection.

That objection was sustained. There was a request

that word be stricken. That request was denied.

During the course of this objection, defense counsel

also mentioned the prosecutor’s perceived attempt to

emulate an African-American voice that defense

counsel had failed to object to at the time. No motion

for mistrial was made on either ground. Prior to

deliberation the jury was given an instruction that

they must decide this case only on the evidence in this

1

courtroom and that they must do so without prejudice

and without sympathy (Trial Transcript [‘TT’] 689).

The Petitioner was found guilty.

The Petitioner appealed his convictions based

upon multiple distinct issues. In his seventh issue on

appeal was an assertion that he was denied his right

to a fair trial by prosecutor’s use of racially

inflammatory language in closing. The Appellate

Division, Fourth Department, wrote a decision in

which it addressed some of the Petitioner’s multiple

complaints with specificity, deciding those not

specifically addressed as follows, “[w]e have reviewed

defendant's remaining contentions and conclude that

none warrants further modification or reversal of the

judgment” (People v. Green, 179 AD3d 1516, 1517, 118

NY.S3d 853, 855, leave to appeal denied, 35 NY3d

993, 149 NE3d 389 [2020], reconsideration denied, 35

2

NY3d 1045, 151 NE3d 522 [2020]). The race-based

claim was one of those not specifically addressed.

STATEMENT OF THE CASE

On November 6, 2014, the Ontario County

Grand Jury indicted the Petitioner on three charges of

CRIMINAL

SALE

OF

A

CONTROLLED

SUBSTANCE IN THE THIRD DEGREE (Penal Law

[‘PL’]

§

220.39[1]),

and

two

charges

of

ENDANGERING THE WELFARE OF A CHILD (PL

§ 260.10[1]). The indictment alleged that the

Petitioner Angnem Green knowingly and unlawfully

sold cocaine on three occasions, and on one such

occasion he did so in front of children.

A trial commenced on May 23, 2016. On May

24, 2016 both parties delivered closing arguments. In

his summation, the prosecutor made the following

statement:

3

“[The petitioner is] pretty savvy. ‘Why

would I stick my own neck out on the line?

Whoa, whoa, whoa, whoa, whoa. Let’s

switch it up. I’m going to send my boy to do

the deal. He’s going outside in the middle of

the park. I’m not getting out there. I’m

going to send my boy, Nicky Phelps, out to

do that deal’” (TT 648).

The defense counsel made no objection to this portion

of the prosecutor’s summation.

The prosecutor then addressed the credibility of

the confidential informant who testified as a State

witness. He argued that the witness took a risk

testifying, reminding the jury that Geneva was a

small town where word travels fast, especially with

the appellant’s “homeboys” in the courtroom for her

testimony

(TT

663).

Defense

counsel

objected,

characterizing the use of the word “homeboys” as

“racially inflammatory,” and the trial court sustained

the objection (id.). Defense counsel then asked the

court to instruct the jury to disregard the prosecutor’s

comments regarding “homeboys” (id.). The court

4

indicated it would leave the record as is, but that the

jury would be instructed to remove bias, sympathy,

and prejudice from its deliberations (TT 676). Defense

counsel did not ask for any further instructions or

admonishments by the trial court.

Upon the close of summations, the jury was

excused from the courtroom, at which time defense

counsel then took further exception to the summation,

arguing again, this time in the context of considering

whether to make a motion for mistrial on these

grounds, that it was inappropriate for the prosecutor

to use the word “homeboys” while pointing to the

gallery (TT 671). He went on to claim for the first time

that the prosecutor had also inappropriately emulated

an African-American voice when discussing the

Petitioner’s controlled phone calls (id.).

The prosecutor responded that his summation

was fair comment where the defense summation

5

called the witness credibility into question, and,

where the gallery could be heard during the trial (TT

673). Despite contemplating it, defense counsel did

not formally move for a mistrial on these grounds (id.).

During the course of giving jury instructions,

the court made the following statement regarding

prejudice and bias:

“Remember, when this trial began, that

each of you promised, when you were

being selected, you each solely promised

that you would honestly deliberate and

express your views to each other. You

promised on your oaths that you would

decide this case only on the evidence in

this courtroom and the laws as I have

explained them to you, and that you

would do so without prejudice and

without sympathy” (TT 698).

Following the instructions, the jury began

deliberations. The jury eventually submitted a note to

the court indicating that they had reached a verdict

on the first three counts, and were still deliberating

on count four. (TT 746). The People asked the court to

6

dismiss the fourth count of the indictment, and the

defense counsel did not object (id.). The jury returned

a verdict of guilty on three counts of Criminal Sale of

a Controlled Substance in the Third Degree. (TT 75051).

The jury was dismissed, and defense counsel

renewed his motion for a trial order of dismissal,

asserting only that the Petitioner’s identity had not

been established (TT 765). The People opposed, and

the court denied the motion (TT 765-66).

On February 7, 2016, the Petitioner appealed to

the Fourth Department of the Appellate Division,

New York State Supreme Court. The Petitioner

submitted his appeal, the People responded, and the

Appellate Division issued a decision modifying the

sentence in the interest of justice, but affirming the

judgment of conviction in all respects (People v. Green,

supra).

7

REASON TO DENY THE PETITION

The Petitioner contends that he was denied his

constitutionally guaranteed right to fair trial due to a

racially inflammatory summation by the prosecutor.

Your

Respondent

herein

maintains

that

the

summation was not racially inflammatory inasmuch

as it did not appeal to the jury’s racial passion or

prejudice, and to the extent that it was otherwise

improper, it did not rise to the level of denying the

Petitioner a fair trial requiring reversal. One of the

two allegations of racially inflammatory conduct in

summation is also unpreserved for review.

… as to preservation

While it is seemingly unresolved to some extent

federally,

to

preserve

a

claim

of

improper

prosecutorial conduct in New York, a trial Defendant

must timely object to the allegedly improper conduct

8

(see People v. Rivera, 73 N.Y.2d 941, 942, 537 N.E.2d

618, 618 [1989]); see also CPL § 470.05(2).

Defense

prosecutor’s

counsel

alleged

did

not

emulation

object

to

of

African-

an

the

American voice, and this issue was thus unpreserved

for review at the State level.

… as to the merits

In the context of racial comments, although

both state and federal courts universally reject

racially inflammatory presentations, precisely what

constitutes an impermissible appeal to racial bias in

summation is somewhat nebulous.

Generally, if the circumstances of a particular

case indicate a significant likelihood that racial bias

may have influenced a jury, the Constitution requires

questioning as to such bias (see Ristaino v. Ross, 424

U.S. 589, 596, 96 S.Ct. 1017, 1021, 47 L.Ed.2d 258

[1976]). What does that mean? Perhaps the most

9

succinct explanation was provided by Judge Frank’s

dissent in United States v. Antonelli Fireworks Co.,

where he wrote that a prosecutor “should not be

permitted to summon that thirteenth juror, prejudice”

(155 F.2d 631, 659 [2d Cir. 1946]).

Generally, to warrant a reversal of a conviction

on grounds of a prosecutor's improper comment in

closing argument, a court must find that the

prosecutor's remarks were both inappropriate and

harmful (United States v. Young, 470 U.S. 1, 11, 105

S.Ct. 1038, 1044, 84 L.Ed.2d 1 [1985]). In New York,

prosecutorial misconduct only warrants reversal

when it substantially prejudices the defendant’s trial

(People v. Galloway, 54 NY2d 396, 401 [1981]). If an

error does occur, even if that error is serious, it may

be remedied by either an instruction at the time of the

error, or in the trial court’s final instructions to the

jury (see People v. Diotte, 63 AD3d 1281 [3d Dept.

10

2009]; People v. Guica, 58 AD3d 750 [2d Dept. 2008];

People v. Alexander, 50 AD3d 816 [2d Dept. 2008]).

In cases dealing with alleged appeals to racial

prejudice, the federal test applicable where the

evidence of guilt is not otherwise overwhelming, is the

“probability of prejudice” test (U. S. ex rel. Haynes v.

McKendrick, 481 F.2d 152, 159 [2d Cir. 1973]). To

determine whether the comments of any prosecutor

have deprived any defendant of a fair trial by creating

the probability of prejudice requires an implicitly factsensitive inquiry. To understand how to apply that

test to the instant case, we must first look at what

statements in summation have been previously found

to violate the rule.

In

Haynes

v.

McKendrick,

supra,

the

prosecutor referred to African-Americans as, “these

people,” referred to some members of the minority

community

as

the

“young

11

bucks

in

that

neighborhood,” and complained of the weakness and

inability of “them” to do or know things that are

“commonplace for the ordinary person (emphasis

supplied) to know” (481 F.2d 152, 160 [2d Cir. 1973]).

That court pointed out that the closing remarks of the

prosecutor “served to dichotomize the people in the

courtroom, to divide them into black and white” (id.).

In People v. Hearns, 18 A.D.2d 922, 923, 238

N.Y.S.2d 173, 174-75 (2d Dept. 1963), the New York

Appellate Division reversed a conviction because the

prosecutor had urged the jury to credit the testimony

of Black police officers partly on the basis of their

membership in the same racial group as the

defendant. That argument, the court concluded, is

predicated on a false and illogical premise and

therefore constitutes an appeal to racial prejudice

(id.). This same racism was spurned at the Federal

level as well, where, in McFarland v. Smith, 611 F2d

12

414 (2d Cir 1979), the court found due process denied

where the prosecutor had urged that a Black police

officer's testimony be considered more credible by

virtue of the fact that she was testifying against a

Black defendant.

In Bennet v. Stirling, the Fourth Circuit found

that a prosecutor’s reference to a Black defendant

accused of sex crimes as “King-Kong” in summation

was egregious enough to deprive the defendant of a

fair trial where it conjured the “long and ugly history

of depicting African-Americans as monkeys and apes,

and the pejorative and inflammatory nature of such

references”

(170

F.

Supp.

3d

851,

864

(D.S.C.), aff'd, 842 F.3d 319 [4th Cir. 2016]).

In Commonwealth v. Graziano, 368 Mass. 325,

331 N.E.2d 808, 812–13 (1975), the Supreme Judicial

Court of Massachusetts overturned the conviction of

two Italian defendants in part because the prosecutor

13

evoked their national origins and improperly appealed

to ethnic stereotypes by alluding to Mario Puzo's The

Godfather

in

summation,

and

also

repeatedly

referencing Al Capone. In that case, the negative

allusions were unmistakable, and, in addition, the

prosecutor made other more direct references to

defendants' ethnicity when he remarked that defense

witnesses “[a]ll come from Italy” and “they” speak

better English than he does (id.).

In Hampton v. State, the Supreme Court of

Mississippi found statements of the prosecutor to be

unconstitutional misconduct where he stated that,

“mulattoes should be kicked out by the white race and

spurned by the negroes”; that “they were negroes, and

that as long as one drop of the accursed blood was in

their veins they have to bear it”; that “these negroes

(referring to the defendant and his brother) thought

they were better than other negroes, but in fact they

14

were worse than negroes,” “they were negritoes

(pointing at the defendant), a race hated by the white

race and despised by the negroes, accursed by every

white man who loves his race, and despised by every

negro who respects his race” (Hampton v. State, 88

Miss. 257, 40 So. 545, 546 [1906]).

Equally elucidative in this fact-based inquiry

are those decisions which have evaluated comments

in summation and found they did not prejudice the

defendant.

In United States v. Weiss, the Second Circuit

found that the prosecutor's summation did not result

in a “probability of prejudice,” even at the subliminal

level, where allusions to The Merchant of Venice were

so oblique that that the connection to the play was

unclear, and even if they could have triggered some

connection with that play, they could not have

triggered a prejudiced response unless the listener

15

made a further connection with the play's anti-Semitic

overtones (930 F.2d 185, 196 [2d Cir. 1991]).

In Smith v. Farley, the Seventh Circuit held

that a prosecutor’s reference in summation to a Black

defendant as acting “super-fly,” and stating that a

reluctant prosecutorial witness was “shucking and

jiving” on the stand did not rise to the level of

prejudice so as to deprive the defendant of due process

(59 F.3d 659, 664 [7th Cir. 1995]). That court noted

that the phrase “shucking and jiving” was not even

clearly racial in character, having been absorbed into

Standard English such that it now applies to all racial

and ethnic groups (id.). As to the use of the word

“super-fly,” the court agreed it was clearly racial in

nature, but held that given its accepted definition of,

among other things, “superior; wonderful,” it is merely

conjecture that the use of the term “super-fly” had any

impact on the jury's consideration of the case (id.).

16

In United States v. Hernandez, the prosecutor

stated during summation that “each of you by the

verdict that is represented by the evidence will send a

clear message to Cuban drug dealers” (865 F.2d at

927). This was the prosecutor's only reference

to Cubans, and curative instructions were given by

the trial judge. The Seventh Circuit concluded that

“within the context of the entire trial, the remark was

not

so

inflammatory

as

to

prejudice

the

defendant” (id. at 928).

In United States v. Lively,

the Delaware

District Court found a defendant’s claim of racial

prejudice without merit where the prosecutor used the

word “dude” (817 F. Supp. 453 [D. Del.], aff'd, 14 F.3d

50 [3d Cir. 1993]). The defendant claimed that the use

of the term “dude” was introduced to appeal to the

jury’s prejudice (id.). The court held that the

defendant failed to prove that this remark was overtly

17

racist, and found the defendant’s claim frivolous (id.).

“To reach a conclusion that the remarks were

intended subliminally to appeal to racial prejudices,

the Court must accept that the prosecutor's reference

to ‘dudes’ meant only black men and that the jury

would understand “dudes” to only refer to black men.

The Court refuses to engage in such speculation

because the word ‘dude’ is used in any number of

contexts and certainly is not limited to men or women

of a particular race. The Court rejects as frivolous,

therefore, a conclusion that ‘dudes’ equals black men”

(id., 463).

Aggregating these cases into an analytical

framework and applying them to the instant case, it

becomes clear that the remarks in this case fall

squarely in line with those where no deprivation of the

right to a fair trial was found. This was not the

undeniable kindling of racial or ethnic predilections

18

affecting juror impartiality discussed in United States

v. Doe, 903 F.2d 16, 28 (D.C. Cir. 1990).

The Petitioner contends that two of the

remarks

made

by

the

prosecutor

during

his

summation were improper. The Petitioner ignores,

however, that the comments of the prosecutor were

largely a response to the comments of defense counsel

in summation.

It is the right of counsel during summation to

“comment upon every pertinent matter of fact bearing

upon the questions the jury have to decide” (Williams

v. Brooklyn El. R.R., 126 NY 96, 102 [1981]). In

criminal cases, this right applies to the defendant and

prosecutor alike (Herring v. New York, 422 U.S. 853

[1975]; People v. Mull, 167 N.Y. 247 [1901]). However,

since a jury must decide the issues solely on the

evidence presented, prosecutors must confine their

comments to the “four corners of the evidence,” and

19

avoid irrelevant comments that have no bearing on

the issues before the jury (Williams, supra at 103; see

People v. Carborano, 301 NY 39, 42 [1950]). Remarks

by the prosecutor may also be proper if they are a

suitable response to the defense summation (see

People v. Lazzaro, 62 AD3d 1035 [3d Dept. 2009];

People v. Simpson, 50 AD3d 452 [1st Dept. 2008];

People v. Ortiz, 39 AD3d 423 [1st Dept. 2007]). In the

instant matter, therefore, “the prosecutors' comments

must be evaluated in light of the defense argument

that preceded it” (Darden v. Wainwright, 477 U.S.

168, 179, 106 S. Ct. 2464, 2470, 91 L. Ed. 2d 144

[1986]).

In the instant matter, the Petitioner claims

that the prosecutor imitated “Petitioner’s AfricanAmerican voice” (Petition at p. 4). It is agreed that the

prosecutor spoke in the first-person as the Petitioner

(TT 647-678). However, the prosecutor also spoke in

20

the first-person as a witness (TT 646-647), and as

defense counsel (TT 647). Tellingly, he also retold his

own questioning in the first-person, adding some

colloquial

flourish,

when

he

emulated

himself

questioning Detective Vine as to why Vine used

Robinson instead of just buying the cocaine from the

Petitioner himself, he said “Bro, why didn’t you just

do the deals yourself?” (TT 656). Of course, in his

actual direct he never prefaced his question with “Bro”

(TT 414-415). That he would use such a term in

summation while imitating himself, however, tells of

the manner in which he is prone to speaking.

Thus, it is not that this Petitioner was singled

out by imitation, but simply that speaking in the firstperson was a common rhetorical device for this

prosecutor.

Importantly,

nothing

in

what

the

prosecutor said made any direct reference to race or

ethnicity.

21

Instead, what the prosecutor was attempting to

do was respond to the arguments of counsel. The

defense, in summation, spent a great deal of time

focusing the jury’s attention on the fact that the police

never observed the defendant to sell drugs, and that

there was no credible evidence that the defendant set

up the drug deals with the person who was witnessed

selling the drugs—Nicky Phillips (TT 621-624).

Based upon the defense summation, it was

incumbent upon the prosecutor to point out how the

facts of the case make out accessorial liability. Among

those facts were the conversations between the

Petitioner and State witness April Robinson. Both

Detective Vine and April Robinson testified to the

contents of the calls (TT 362, 381, 482-483). The

witnesses described calls with the Petitioner wherein

the Petitioner negotiated the sale of cocaine, then a

second call wherein the Petitioner told Robinson that

22

the plan had changed, and he was sending Nicky

Phillips to do the deal (TT 362). Commenting on the

phone calls with the defendant was fair in a case

where the defense articulated in summation by

defense counsel was that Nicky Phillips, and not the

Petitioner, was the drug dealer.

Additionally, the prosecutor in this case, as

with virtually every criminal case in our nation, had

to contend with a culpable mental state. It should be

considered within the broad bounds of permissible

rhetoric to speak in the voice of the defendant in

summation where doing so can connect the evidence

in the case to the required culpable mental state that

the prosecutor bears the burden of proving.

The second race-based accusation is when the

prosecutor uses the word “homeboys” during his

summation.

Here

again,

the

prosecutor

was

responding to the summation of defense counsel, who

23

spent a great deal of time devoted to attacking the

credibility of State witness April Robinson (TT 624643).

The prosecutor then rightfully addressed the

credibility of April Robinson. He argued that the

witness took a risk testifying, reminding the jury that

Geneva was a small town where word travels fast,

especially with the Petitioner’s “homeboys” in the

courtroom for her testimony (TT 663).

Defense counsel objected, characterizing the

use

of

the

word

“homeboys”

as

“racially

inflammatory,” and the trial court sustained the

objection (TT 663). Defense counsel then asked the

court to instruct the jury to disregard the prosecutor’s

comments regarding “homeboys” (id.). The court

indicated it would leave the record as is, but that the

jury would be instructed to remove bias, sympathy,

and prejudice from its deliberations (TT 676). Defense

24

counsel did not ask for any further instructions or

admonishments by the trial court.

The prosecutor’s comment was fair comment

where the defense summation called the witness

credibility into question, and, where the gallery could

be heard during the trial (TT 673). In addition to being

otherwise fair comment on the record, the word

“homeboys” is not, as suggested, inherently racist. To

the contrary, like “shucking and jiving,” or “super-fly,”

in Smith v. Farley, supra, the word “homeboy” is no

longer clearly racial in character, having long been

absorbed into our ordinary American language such

that it now applies to all races and ethnic groups, and

is used commonly amongst them all.

In today’s age there is simply nothing in that

word that can fan the flames of racial hatred. The

word “homeboy” is now commonly defined as

“someone from one’s neighborhood, hometown or

25

region”

(homeboy,

Merriam-Webster

Collegiate

Dictionary [11th ed. 2014]), and that is precisely how

it was used here.

During the course of giving jury instructions,

the court made the following statement regarding

prejudice and bias:

“Remember, when this trial began, that each of you

promised, when you were being selected, you each

solely promised that you would honestly deliberate

and express your views to each other. You promised

on your oaths that you would decide this case only on

the evidence in this courtroom and the laws as I have

explained them to you, and that you would do so

without prejudice and without sympathy” (TT 698).

The likelihood of any prejudice is dissipated by

appropriate jury instructions that sympathy may not

play a role in jury deliberations (see People v.

Williamson, 267 AD2d 487, 490 [3rd Dept., 1999];

People v. Caminero, 193 AD2d 547 [1st Dept., 1993]).

In this case, the trial judge expressly advised the jury

that, “nor may your verdicts be influenced in any way

by any bias, prejudice [or] sympathy.” (TT 689).

26

It is beyond contention that “appeals to racial

passion can distort the search for truth and drastically

affect a juror’s impartiality” (Doe, supra, 25). The

instant matter, however, did not involve any appeal to

racial passion, and nothing in the prosecutor’s two

brief remarks can be fairly said to have drastically

affected any juror’s impartiality. Especially in light of

the ameliorative instructions given by the trial court.

27

CONCLUSION

For

the

foregoing

reasons,

the

People

respectfully request that the petition for writ of

certiorari be denied.

Respectfully submitted,

James B. Ritts

District Attorney, Ontario County

By: V. Christopher Eaggleston

Assistant District Attorney

28