People v. Arroyo

• Decision Date: 22 January 1981
• Citation: 79 A.D.2d 950,435 N.Y.S.2d 16
• Parties: The PEOPLE of the State of New York, Respondent, v. Pedro ARROYO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 16

435 N.Y.S.2d 16

79 A.D.2d 950

The PEOPLE of the State of New York, Respondent, v.Pedro ARROYO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 22, 1981.

T. McGinn, New York City, for respondent.

S. L. Johnson, New York City, for defendant-appellant.

Before ROSS, J. P., and LUPIANO, SILVERMAN, YESAWICH and CARRO, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered March 15, 1979, convicting defendant, on jury verdict, of assault in the second degree (PL§ 120.05(2)), and sentencing him as a second violent felony offender to a term of imprisonment of 31/2 to 7 years, is affirmed.

The trial judge was justified in finding that the victim could not "with due diligence" be found (CPL § 670.10 subd. 1), and thus permitting the use of the transcript of the victim's testimony from the preliminary hearing.The opportunity for cross-examination and the actual cross-examination at the preliminary hearing were adequate, as was the identification of the defendant.

The most serious questions in the case arise by reason of the assistant district attorney's improper and intemperate remarks on summation.Some of these remarks were innocuous or obvious, e. g., the possibility that the victim might have been killed.Again the remark about the police officer, though obviously improper, added almost nothing; the testimony of the victim the obvious informant including cross-examination at the preliminary hearing shortly thereafter was read to the jury.Some of the district attorney's remarks were in response to defendant's attorney's summation.Other remarks of the district attorney were more serious and quite unjustified.The most serious was the suggestion that the absence of the victim at the trial may have been due to threat by the defendant.(In fact it seems quite clear that the absence was due to the victim's feeling of friendship for defendant.)We would agree with the dissenting justice that these remarks would require a reversal but for the following circumstances: (a) The trial judge promptly gave pointed and effective curative instructions, repeated them in his charge, and then repeated them again in an addition to the charge.(b) There was no motion for a mistrial.(c)The defendant's guilt was absolutely clear and almost uncontested, the defense consisting essentially of just emphasizing the victim's absence from the trial.

All concur except CARRO, J. who dissents in a memorandum as follows:

I dissent on the ground that the improper and prejudicial comments of the prosecutor in summation deprived the defendant of a fair trial.

The attitude of the assistant District Attorney throughout, and his gratuitous remarks, created an atmosphere inimical to the conduct of a reasoned inquiry.This dissent however is based primarily upon the following four excerpts from his summation.

1."What do we have here?We have an assault case which, thank God, did not degenerate into something more vicious because of the actions of one unknown party who did not choose to come.He did not want to be involved, and as residents of the Bronx County, you know that this happens quite often.I don't want to get involved.They'll help you, but that's it."

The purpose of the first part of this quote, and of several other similar comments, appears to have been to upset the jury and appeal to its sympathy, since it was only Providence that this case was not more "vicious" or "serious"(i. e., murder?).

The second portion of the quote referred to a man who allegedly interfered with the defendant's assault upon the complainant.In fact, the prosecutor did not know the identity of this witness.However, the effect of the comment is to imply that the prosecutor spoke to the witness who, had he chosen to come to court, would have supported the People's case.

2."He(Officer Schmucker) was called over to see a woman all cut up, bleeding, distraught, hysterical.Investigated the case.He found out who did it.He couldn't tell you."

This comment arose from a ruling whereby the officer was prevented from stating the identity of the perpetrator, as allegedly told to him by ...