People v. Ashwal

Decision Date01 April 1976
Citation383 N.Y.S.2d 204,39 N.Y.2d 105,347 N.E.2d 564
Parties, 347 N.E.2d 564 The PEOPLE of the State of New York, Respondent, v. Eugene ASHWAL, Appellant.
CourtNew York Court of Appeals Court of Appeals

Philip L. Weinstein and William E. Hellerstein, New York City, for appellant.

Eugene Gold, Dist. Atty. (J. Mitchell Rosenberg, Brooklyn, of counsel), for respondent.

WACHTLER, Judge.

The principal question on this appeal is whether the defendant was deprived of his right to a fair trial because of a comment made by the prosecutor during summation. In our view the statement was prejudicial and the defendant is entitled to a new trial.

For several years the defendant and Stan Fulfaro were, according to the defendant, 'very good friends.' Fulfaro was also a former drug addict who for some time had been working as a confidential paid informer for the New York City Police Department and the Federal Government. In early 1973 Fulfaro introduced his 'brother Nick' to the defendant. Nick was actually an undercover New York City police officer named Nicholas Molfetta. On March 13, 1973 Stan and Nick went to an apartment at 9905 Glenwood Road, in the Canarsie section of Brooklyn, where they met the defendant and Joyce Light. During the course of an hour spent in the apartment Nick allegedly asked the defendant for some drugs. According to the officer the defendant produced a small tinfoil packet containing a white powder which the defendant said was 'dope', meaning heroin. After paying the defendant $25 Nick left the apartment together with Stan. A later analysis of the contents of the packet indicated that it contained heroin.

On April 10, 1973 Molfetta, accompanied by several other police officers, returned to the apartment armed with a search warrant. He knocked on the door and identified himself as Nick. When the door was opened he and the other officers rushed into the apartment.

The defendant, his wife Barbara, Joyce Light and Elizabeth Danile were in the living room. In an ashtray, on the living room coffee table, the officers found a jewelry box containing a small quantity of drugs consisting of two pieces of a brown substance containing hashish, 2 pipes containing a residence of marijuana and a piece of spotted paper, in a tinfoil packet, which upon analysis was found to have 'LSD present on it.' No other illegal drugs were found in the apartment. 1 However two 'pen guns' were discovered in a bedroom dresser drawer and an unregistered rifle was recovered from the bedroom closet.

At trial the defendant denied selling drugs to Officer Molfetta and denied possessing the drugs and weapons seized at the Glenwood apartment. He testified that the apartment belonged to Joyce Light, that he did not live there, but resided with his parents in another part of Canarsie. The defendant's estranged wife agreed that he lived with his parents and she with hers. They still met occasionally, particularly at Joyce Light's Glenwood apartment. Elizabeth Danile also testified that the apartment belonged to Joyce Light. One of the officers who executed the warrant stated that the defendant admitted living at the apartment; another stated that the apartment belonged to Joyce Light and that the defendant denied living there. The defendant's father testified that the defendant lived with his parents.

Joyce Light did not testify at the trial. Neither did not informer, Stan Fulfaro. One of the police officers testified that Stan had died prior to trial. Another said that 'he was killed.'

During summation the prosecutor alluded to the informer's death and made certain comments which form the basis of the present appeal.

'(The Prosecutor): We know Stan is dead. Why he is dead, we don't know. One of the officers said he was killed. Maybe the price that Stan paid for the one decent act--

'Mr. Dunaif (defense counsel): Your Honor, I object to this.

'The Court: No. Mr. Dunaif, the objection is overruled.

'Mr. Dunaif: I respectfully except.

'The Court: There was testimony, was there not, that Stan was killed?

'Mr. Dunaif: There is no testimony that he paid a price to society.

'The Court: Nobody said there was. The District Attorney is arguing.

'Mr. Dunaif: He just made that statement.

'The Court: Let counsel argue. Objection overruled.

'(The Prosecutor): Perhaps the price he paid for his new found profession'.

At the conclusion of the trial the jury found the defendant guilty of possession and sale of drugs and unlawful possession of weapons. 2

On this appeal the defendant claims that he was deprived of a fair trial because the 'obvious, and improper message conveyed to the jury by (the prosecutor's) * * * remark was that appellant was responsible for the informant's death.'

It is, of course, 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. Co., 126 N.Y. 96, 102, 26 N.E. 1048, 1049; People v. Fielding, 158 N.Y. 542, 53 N.E. 497; People v. Benham, 160 N.Y. 402, 55 N.E. 11; People v. Priori, 164 N.Y. 459, 58 N.E. 668). In criminal trials it is a right guaranteed to the defendant (Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593) and the prosecutor alike (People v. Mull, 167 N.Y. 247, 60 N.E. 629; People v. Doody, 172 N.Y. 165, 64 N.E. 807; CPL 260.30, subds. 8, 9). And although counsel is to be afforded 'the widest latitude by way of comment, denunciation or appeal in advocating his cause' (Williams, supra, 126 N.Y. at p. 103, 26 N.E. at p. 1049) summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits.

It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within 'the four corners of the evidence' (Williams, supra, at p. 103, 26 N.E. at p. 1049) and avoid irrelevant comments which have no bearing on any legitimate issue in the case (People v. Carborano, 301 N.Y. 39, 42, 92 N.E.2d 871, 873; People v. Tassiello, 300 N.Y. 425, 91 N.E.2d 872). Thus the District Attorney may not refer to matters not in evidence (People v. Fielding, 158 N.Y. 542, 53 N.E. 497, Supra; People v. Esposito, 224 N.Y. 370, 121 N.E. 344; People v. Dixon, 231 N.Y. 111, 131 N.E. 752; People v. Jackson, 7 N.Y.2d 142 196 N.Y.S.2d 79, 164 N.E.2d 381) or call upon the jury to draw conclusions which are not fairly inferable from the evidence (People v. Van Aken, 217 N.Y. 532, 112 N.E. 380; People v. Creasy, 236 N.Y. 205, 140 N.E. 563; People v. Jenman, 296 N.Y. 269, 72 N.E.2d 889; People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964, 272 N.E.2d 477). Above all he should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant (see, e.g., People v. Posner, 273 N.Y. 184, 190, 7 N.E.2d 93, 96; People v. Levan, 295 N.Y. 26, 36, 64 N.E.2d 341, 346; People v. Carborano, supra; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314). He may not, for instance, try to convey to the jury, by insinuation, suggestion or speculation, the impression that the defendant is guilty of other crimes not in issue at the trial (see, e.g., People v. Carborano, supra; cf. People v. Doody, 172 N.Y. 165, 64 N.E. 807, Supra).

Here the prosecutor's remark definitely conveys the impression that Fulfaro was killed by those he had informed upon, one of whom was this defendant. This suggestion that the defendant, or friends of his, might have committed homicide in order to affect the outcome of the trial was certainly not a fair comment on the evidence. More important, it was totally irrelevant to any legitimate issue presented at the trial.

There was, of course, nothing in the record...

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