People v. Allen
| Decision Date | 04 December 1995 |
| Citation | 635 N.Y.S.2d 40,222 A.D.2d 441 |
| Parties | The PEOPLE, etc., Respondent, v. Warren ALLEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Robert C. Mitchell, Riverhead (Anna M. Perry, of counsel), for appellant.
James M. Catterson, Jr., District Attorney, Riverhead (Glenn Green, of counsel; Michael Szechter and Gloria Godsell, on the brief), for respondent.
Before MANGANO, P.J., and BALLETTA, COPERTINO and HART, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Cacciabaudo, J.), rendered April 20, 1993, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15[5] ).
It was improper for the trial court to allow the prosecutor to ask questions regarding a detective's opinion on the truth of the defendant's statement, the effect of which was to solicit his opinion of the defendant's credibility (see, People v. Graydon, 43 A.D.2d 842, 351 N.Y.S.2d 172). The detective was not an expert witness, such as a mental health professional, giving his opinion of the defendant's credibility (see, People v. Graydon, supra ). However, an error of this nature is not reversible per se. The court repeatedly admonished the jury that it was to be the ultimate arbiter of credibility. In addition, the evidence of guilt was overwhelming. Thus, the error was harmless (see, People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).
We have reviewed the defendant's remaining contentions and find them to be without merit.
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...Owens, 2002 SD 42, ¶ 86, 643 N.W.2d 735, 755. [¶ 34.] A similar error occurred in the second degree murder case of People v. Allen, 222 A.D.2d 441, 635 N.Y.S.2d 40 (1995). There, the appellate court concluded that it was improper for the trial court to permit the prosecutor to ask questions......
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