People v. Balkum
| Decision Date | 14 April 1989 |
| Citation | 149 A.D.2d 976,540 N.Y.S.2d 111 |
| Parties | PEOPLE of the State of New York, Respondent, v. Willie BALKUM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward J. Nowak by Michael Steinberg, Rochester, for appellant.
Howard R. Relin by Melvin Bressler, Rochester, for respondent.
Before DENMAN, J.P., and BOOMER, PINE, LAWTON and DAVIS, JJ.
The prosecutor impermissibly implied, during his cross-examination of defendant and on summation, that defendant's drug addiction and poverty indicated a propensity to commit the crime charged (see, People v. Wright, 41 N.Y.2d 172, 391 N.Y.S.2d 101, 359 N.E.2d 696; People v. Torres, 119 A.D.2d 508, 509-511, 500 N.Y.S.2d 701; People v. Hicks, 102 A.D.2d 173, 182-183, 478 N.Y.S.2d 256). This error was exacerbated by the court's refusal to charge that defendant's drug addiction was not to be considered as evidence of his propensity to commit the crime charged (see, People v. Ciervo, 123 A.D.2d 393, 396, 506 N.Y.S.2d 462; see also, People v. Allweiss, 48 N.Y.2d 40, 46, 421 N.Y.S.2d 341, 396 N.E.2d 735). It was error for the Court to offer to charge the jury in this regard only if defendant agreed to an additional charge that such evidence could be considered by the jury to prove motive. Defendant should not be placed in a position where he has to bargain for his right to a proper charge. Additionally, the trial court erred in permitting the service of a late notice of identification testimony and admitting this testimony. The People's excuse that the notice was late because of a typographical error is merely law office failure, and does not constitute "good cause shown" (see, CPL 710.30[2]; People v. O'Doherty, 70 N.Y.2d 479, 485-487, 522 N.Y.S.2d 498, 517 N.E.2d 213; People v. Briggs, 38 N.Y.2d 319, 324, 379 N.Y.S.2d 779, 342 N.E.2d 557).
Judgment unanimously reversed on the law and new trial granted.
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