People v. Arce

• Decision Date: 22 March 1976
• Citation: 51 A.D.2d 1043,381 N.Y.S.2d 328
• Parties: The PEOPLE, etc., Respondent, v. George A. ARCE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 328

381 N.Y.S.2d 328

51 A.D.2d 1043

The PEOPLE, etc., Respondent, v.George A. ARCE, Appellant.

Supreme Court, Appellate Division, Second Department.

March 22, 1976.

Thomas N. O'Hara, c/o McCann, Ahern & Sommers, P.C., Newburgh, for appellant.

Kenneth Gribetz, Dist. Atty., New City(Thomas E. Urell, New City, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN, MARGETT and RABIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the County Court, Rockland County, rendered June 18, 1974, convicting him of murder (two counts) and conspiracy in the third degree, upon a jury verdict, and imposing sentence.

Judgment affirmed.No opinion.

HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN and RABIN, JJ., concur.

MARGETT, J., votes to reverse the judgment and order a new trial, with the following memorandum:

In my view, the comments made by the prosecutor during summation went beyond permissible bounds when he improperly speculated upon facts not in evidence; characterized the defendants as 'proven cold-blooded killers'; and personally vouched for the honesty of several prosecution witnesses (seePeople v. Figueroa, 38 A.D.2d 595, 328 N.Y.S.2d 514;People v. Hickman, 34 A.D.2d 831, 312 N.Y.S.2d 644).I am particularly disturbed by his admonition to the jury that it should not be bothered by the doctrine of reasonable doubt.

'Not only the individual defendant but the public at large is entitled to assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial * * * So, if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial,...