People v. Blackman

Decision Date10 May 1982
Citation450 N.Y.S.2d 38,88 A.D.2d 620
PartiesThe PEOPLE, etc., Respondent, v. Rogelio Adolfo BLACKMAN, Appellant.
CourtNew York Supreme Court — Appellate Division

Barry H. Krinsky, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Katherine N. Rose, Brooklyn, of counsel), for respondent.

Before WEINSTEIN, J. P., and O'CONNOR, THOMPSON and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 7, 1981, convicting him of criminal sale of a controlled substance in the third 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 factual issue as to identification of defendant was a very close one. The testimony indicated that an individual sold a quantity of cocaine to an undercover officer as the latter sat in an automobile. After the sale was consummated, the undercover officer drove away and radioed to two backup officers, who had been watching the transaction from a distance of one or one and one-half blocks, the information that the sale had been completed. The backup officers lost sight of the seller, but then entered the hallway of a nearby residential building some five minutes after receiving the radio message, where they spotted and arrested the defendant. No drugs or marked "buy" money were found on the defendant. Shortly thereafter, the undercover officer drove past the defendant, who was in the custody of the other officers, at a speed of approximately 5 miles per hour and a distance of approximately 10 to 15 feet, and identified defendant as the man who had sold him the cocaine. He identified defendant again at the station house.

In view of the closeness of the factual issue as to identification, we hold that several comments made by the prosecutor during his summation had the cumulative effect of depriving defendant of a fair trial. The first was the prosecutor's remark "that you can't pick up a paper in the City of New York and read the daily news without all the crime reporting that goes on". This remark was not based on the evidence and, hence, could only serve to inflame the passions of the jury (see People v. Wallace, 17 A.D.2d 981, 234 N.Y.S.2d 579). Another particularly improper comment was the prosecutor's ad hominem attack on defense counsel in which he accused him of saying different things out of different "cornerof his mouth". Comparatively less egregious, though still improper, was the prosecutor's characterization of defendant as a "business man" in the business of selling drugs, which comment was also unsupported by the evidence, and the prosecutor's drawing attention to the fact that only a xeroxed copy of defendant's honorable discharge from the Marines, and not the original, was submitted into evidence. While we cannot say that any one of these comments would necessarily, by itself, be sufficient to warrant a...

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42 cases
  • People v. Singleton
    • United States
    • New York Supreme Court — Appellate Division
    • June 30, 1986
    ...only in comparison to that of the defense (see, People v. Anthony, 24 N.Y.2d 696, 301 N.Y.S.2d 961, 249 N.E.2d 747; People v. Blackman, 88 A.D.2d 620, 450 N.Y.S.2d 38). In this case it was the defense which repeatedly challenged the credibility of the People's witnesses. The record indicate......
  • People v. Blowe
    • United States
    • New York Supreme Court — Appellate Division
    • May 18, 1987
    ...and a new trial (see, People v. Shanis, 36 N.Y.2d 697, 366 N.Y.S.2d 413, 325 N.E.2d 873; People v. Ricchiuti, supra; People v. Blackman, 88 A.D.2d 620, 450 N.Y.S.2d 38). Since this case requires a new trial, in the event the defendant is convicted again, we note that the trial court did not......
  • People v. Chisholm
    • United States
    • New York Supreme Court — Appellate Division
    • February 29, 1988
    ...during summation. Some of the remarks were responsive to similar remarks made in the defense counsel's summation ( see, People v. Blackman, 88 A.D.2d 620, 450 N.Y.S.2d 38) and any potential prejudice was minimized by specific curative instructions from the trial court ( see, People v. Willi......
  • People v. Gibbs
    • United States
    • New York Supreme Court — Appellate Division
    • October 1, 1990
    ...499 N.Y.S.2d 442) and it may only be fairly evaluated in comparison to the summations presented by the defense (see, People v. Blackman, 88 A.D.2d 620, 621, 450 N.Y.S.2d 38). In this case three defense attorneys presented summations during which they impugned the credibility of prosecution ......
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