On the count of possession of burglar's tools, the court said "We conclude that the conviction of possession of burglar’s tools is not supported by legally sufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and we therefore reverse that part of the judgment and dismiss the fourth count of the indictment.
Attorney's for McCullum then argued against the robbery and burglary convictions claiming he had ineffective counsel at the original trial. The court agreed. Here is a portion of the decision:
Defense counsel repeatedly stated to the jury during voir dire that the trial was to be “a search for the truth.” It is settled that a “prosecutor’s characterization of [a] trial as a ‘search for the truth’ [is] indeed improper” (People v Ward, 107 AD3d 1605, 1606 [4th Dept 2013], lv denied 21 NY3d 1078 [2013]), inasmuch as it is a way of “proposing that the jury might convict even in the absence of proof beyond a reasonable doubt so long as the jury concluded that its verdict represented the truth” (People v Rivera, 116 AD2d 371, 375-376 [1st Dept 1986]). Here, by making that statement to the jury during voir dire then repeating it at least three times during summation, defense counsel improperly diminished the People’s burden of proof.
Furthermore, defense counsel exacerbated the harmful impact
of defendant’s prior convictions during the cross-examination of the People’s
fingerprint expert by eliciting evidence that gave the impression that
defendant had 10 or more prior arrests and/or convictions. When coupled with
the failure to obtain the requisite limiting instruction concerning the
appropriate use of prior convictions and the comments that diminished the
prosecution’s burden of proof, defense counsels actions deprived defendant of
a fair trial.
It is hereby ORDERED that the judgment so appealed from is unanimously
reversed on the law, count four of the indictment is dismissed and a new trial
is granted on counts one and three of the indictment.
The complete decision can be viewed here.
