People v. Bell
| Decision Date | 03 October 1974 |
| Citation | 357 N.Y.S.2d 539,45 A.D.2d 362 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard BELL, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Patrick M. Wall, New York City, for defendant-appellant.
Maurice H. Nadjari, Deputy Atty. Gen., Sp. State Prosecutor (Richard A. Nachman, Marshall L. Goldstein, New York City, of counsel), for the People.
Before McGIVERN, P.J., and MARKEWICH, MURPHY, LUPIANO and MACKEN, JJ.
This is an appeal from a judgment of the Supreme Court, New York County, convicting defendant Bell of Attempted Possession of a Dangerous Drug in the First Degree, Burglary in the First Degree and Attempted Grand Larceny in the Second Degree.
New York City Police Officers Richard Bell and Francis Reilly were jointly indicted and charged with Possession of Dangerous Drugs in the First Degree, Burglary in the First Degree, Attempted Grand Larceny in the Second Degree, Robbery and Conspiracy (the Conspiracy and Robbery counts were not submitted to the jury). Reilly, after the joint trial, died in an automobile accident. The indictment alleges that the defendants entered Room 418 of the Allerton Hotel, located at 302 West 22nd Street, Borough of Manhattan, on April 5, 1973, at about 8:30 P.M., in order to steal more than four pounds of cocaine from the occupants, undercover police officers.
On this record, it is clear that the totality of the trial court's errors was prejudicial as a matter of law. The credibility of the prosecution's chief witness, Gilberto Reyes, was a crucial issue. In refusing to permit defense counsel to examine Reyes, or one Lt. Hawkes, about prior inconsistent statements of Reyes given to Lt. Hawkes, after Reyes' agreement to cooperate, the trial court committed explicit error. Once Reyes claimed that he did not known Hawkes, a sufficient foundation was laid for receipt of the prior inconsistent statements (See United States v. Lipscomb, 435 F.2d 795, 802 (5th Cir. 1971); Richardson on Evidence, Sec. 502 (Tenth Ed.)). Further, the assertion by the prosecutor in summation that the testimony at trial showed that defendant Bell was the 'boss', to which remark defense counsel objected, constituted error, because evidence to this effect was adduced at a Wade-Simmons hearing held during the trial and not at the trial proper. This error was compounded by the trial court's overruling of the objection with the declaration that the court remembered such testimony, notwithstanding its statement that 'The jury will be guided by its own memory.'
Read as a whole, the charge was prejudicial in that it appeared to emphasize the strength of the prosecution's case, in derogation of the requirement to give balanced instructions to the jury in a criminal trial. We also note that at one point in his testimony, Reyes testified that after his arrest and agreement to cooperate, he expected to Receive a twenty-five year sentence, whereas that was merely the maximum term provided by law for an indeterminate sentence for a class B felony (Penal Law Sec. 70.00(2)). The recognizable effect and impact of the totality of errors upon the jury is such as Mandates affording defendant-appellant a new trial.
Accordingly, the judgment rendered on November 8, 1973, in New York County, convicting defendant Bell, after trial, should be reversed on the law and a new trial ordered.
Judgment, Supreme Court, New York County rendered on November 8, 1973, unanimously reversed, on the law and in the interest of justice, and a new trial directed.
All concur except MURPHY, J., who concurs in a...
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