People v. Bennett

• Decision Date: 20 November 1978
• Citation: 65 A.D.2d 801,410 N.Y.S.2d 304
• Parties: The PEOPLE, etc., Respondent, v. Ernest BENNETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 304

410 N.Y.S.2d 304

65 A.D.2d 801

The PEOPLE, etc., Respondent, v.Ernest BENNETT, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 20, 1978.

William E. Hellerstein, New York City(Todd Stern, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (William Schrager, Asst. Dist. Atty., of counsel), for respondent.

Before MOLLEN, P. J., and LATHAM, DAMIANI and TITONE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 23, 1977, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

The prosecutor so overstepped the bounds of legitimate advocacy in this case that we are constrained to reverse and order a new trial notwithstanding the evidence of guilt (seePeople v. Crimmins, 36 N.Y.2d 230, 237-238, 367 N.Y.S.2d 213, 217-219, 326 N.E.2d 787, 790-792).

Among the more egregious prosecutorial errors were (1) the cross-examination of the defendant as to whether he told the police at the time of his arrest about his defense of self-defense, (2) the persistent comments in summation that the defendant had lied and (3) the claims that the defense was a fabrication and a sham.

It is axiomatic that any comment about a defendant's silence or failure to exculpate himself at the time of his arrest is improper (Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91;People v. Von Werne, 41 N.Y.2d 584, 587-588, 394 N.Y.S.2d 183, 185-187, 362 N.E.2d 982, 984-985).It is also improper and outside the bounds of legitimate advocacy for a prosecutor to call a defendant a liar (People v. Shanis, 36 N.Y.2d 697, 366 N.Y.S.2d 413, 325 N.E.2d 873;People v. Rogers, 59 A.D.2d 916, 399 N.Y.S.2d 151), or to characterize his defense as a trick or a sham (People v. Rogers, supra;People v. Morales, 53 A.D.2d 517, 383 N.Y.S.2d 620).

We also view the questions put by the prosecutor about the "forcible intercourse" relating to a prior offense, as improper, particularly inasmuch as the record in the statutory rape conviction indicated there was no force involved and the prosecutor's only "excuse" was that he had misread the offense.This "misreading" was akin to the attack on the defendant's character in disregard of the facts: to wit, although defendant testified that he is a home-improvements contractor who...