People v. Blowe

• Decision Date: 18 May 1987
• Parties: The PEOPLE, etc., Respondent, v. Lester BLOWE, a/k/a Barry Chapman, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 812

515 N.Y.S.2d 812

130 A.D.2d 668

The PEOPLE, etc., Respondent, v. Lester BLOWE, a/k/a Barry Chapman, Appellant.

Supreme Court, Appellate Division Second Department.

May 18, 1987.

Philip L. Weinstein, New York City (Daniel E. Rosen, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Nikki Kowalski and Richard J. Cutler, of counsel), for respondent.

Before MOLLEN, P.J., and BRACKEN, BROWN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered October 16, 1984, convicting him of rape in the first degree, robbery in the first degree, and burglary in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

In this single-witness identification case, the complainant testified that she was raped and robbed by the defendant at gunpoint at 3:00 P.M. on December 31, 1982, in her apartment. On January 11, 1983, the complainant identified a man in the subway and had him arrested. This man was the defendant's brother, and, after viewing a six-photograph array, the complainant identified the defendant and his brother was released. Approximately three and one-half months later, after viewing a lineup for "a brief time", the complainant identified the defendant.

As a result of three errors which occurred at the Wade hearing and during the trial which cumulatively deprived the defendant of a fair trial, his conviction must be reversed. The errors in this case involved (1) the direction by the trial court to commence jury selection prior to the completion of a Wade hearing, (2) the refusal by the court to grant the defendant a one-day adjournment to attempt to bring in a material witness, and (3) the prosecutor's summation.

After having commenced the Wade hearing on Thursday, August 30, 1984, the prosecutor represented that the complainant would be available to testify on the following day. The next morning, however, the prosecutor advised the court that he could not locate the complainant and thus requested a continuance until Tuesday, September 4, 1984, following the Labor Day weekend. The court denied the request and directed that jury selection proceed immediately. The defense counsel objected and argued that the complainant's testimony and the court's ruling on the motion to suppress would affect the manner in which he conducted his voir dire. This objection was overruled. A panel of jurors was sworn to truthfully answer questions relative to their qualifications, and instructed, and four jurors were selected. On the following Tuesday, the complainant appeared in court, the Wade hearing was concluded and the court denied a motion to suppress in all respects. After the court's ruling, the voir dire was continued and completed.

During the trial, the prosecutor advised the court that he had been unable to call his final witness, Police Officer Sharon Jordan. The court granted the People's request for a continuance from Thursday, September 6, 1984, to Friday, September 7, 1984, to afford the People an opportunity to produce Officer Jordan. On Friday, the prosecutor advised the court that Officer Jordan's father died at the beginning of the trial, and she was at his funeral in North Carolina. The defense attorney stated that if the People had not called Officer Jordan, he would have. The court ordered a continuance until Monday, September 10, and instructed both parties to complete their cases on that date. On Monday, the prosecutor informed the court that he had been unable to reach Officer Jordan but that he had been told that she would return the next day. The defense counsel asked for an adjournment for one day until Tuesday, September 11, so that he could attempt to reach Officer Jordan. The court denied this request on the ground that the defense counsel made no effort to subpoena her, and the case was concluded. The defense counsel wanted to adduce proof, through Officer Jordan, that the complainant had made certain statements to the officer which were inconsistent with her trial testimony, and which contradictory statements were noted in the officer's complaint report.

The direction by the trial court to commence the voir dire of the jury prior to concluding the pretrial Wade hearing violated CPL 710.40(3), which provides as follows:

"When the motion [to suppress] is made before trial, the trial may not be commenced until determination of the motion".

CPL 1.20(11) provides that "A jury trial commences with the selection of the jury". Within the purview of CPL 710.40(3), the "commencement" of the trial is the start of jury selection (see, People v. Sanchez, 65 N.Y.2d 436, 492 N.Y.S.2d 577, 482 N.E.2d 56; People v. Aiken, 45 N.Y.2d 394, 408 N.Y.S.2d 444, 380 N.E.2d 272). Thus, the court violated the provision of CPL 710.40(3) when it compelled counsel to commence jury selection prior to the conclusion of the suppression hearing. The court compounded this error in that it forced defense counsel to commence jury selection prior to the time the complainant testified at the Wade hearing. Even though the court did complete the suppression hearing at the following court session, and the defense counsel was permitted thereafter to continue and conclude the voir dire, this unorthodox procedure was, in our view, preserved error which was not harmless. We cannot speculate on the extent of prejudice to the defendant by this procedure, since the effect of compelling the defendant's counsel to commence voir dire prior to conclusion of the suppression hearing cannot be reasonably appraised.

Further, the trial court abused its discretion when it denied the defendant's request for a one-day adjournment to obtain the presence of Officer Jordan. That the officer did not return the following day is immaterial to this ruling. The short adjournment should have been granted; and, on the following day, the court could have ruled on the facts then before it. The law is well established that the defendant has a fundamental right to call a witness in his own behalf (Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297; People v. Gilliam, 37 N.Y.2d 722, 374 N.Y.S.2d 616, 337 N.E.2d 129, revg. 45 A.D.2d 744, 356 N.Y.S.2d 663 on dissenting opn. of Hopkins, J.; People v. Lloyde, 106 A.D.2d 405, 482 N.Y.S.2d 326). While, as a general rule, the granting or denial of a request for an adjournment is within the sound discretion of the Trial Judge (see, People v. Spears, 64 N.Y.2d 698, 700, 485 N.Y.S.2d 521, 474 N.E.2d 1189), in this case the prosecutor had stated that he would call Officer Jordan and the defendant, arguably, relied on that statement. It is clear that Officer Jordan's testimony would have been material and noncumulative. Since defense counsel could not introduce Officer Jordan's complaint report, the alleged inconsistencies in the statements of the complaining witness were not placed before the jury by either the police officer to whom she made these statements or by the official police report. These inconsistent statements would have impeached the complainant's credibility and, specifically, her identification testimony which was the crucial issue in this case. Indeed, on cross-examination, the complaining witness denied making the inconsistent statements set forth in Officer Jordan's complaint report, and the defense counsel could not prove otherwise.

Finally, the cumulative effect of the prosecutor's comments in summation exceeded proper bounds. He clearly and expressly vouched for the complainant's truthfulness in again and again arguing that she was "credible", testified "forthrightly", was "worthy of your belief", was a "quality witness", was "an honest person", a "person of integrity", "is both truthful and accurate, worthy of your belief" and "her believability would sing out to you", and stated:

"You tell me, wasn't she credible?

"I suggest to you, based on the evidence, very much so".

This summation, taken in its entirety, presented the classic example of a prosecutor improperly vouching for the complainant (see, People v. Farmer, 122 A.D.2d 801, 505 N.Y.S.2d 683; People v. Ricchiuti, 93 A.D.2d 842, 461 N.Y.S.2d 67; People v. Whitehurst, 87 A.D.2d 896, 449 N.Y.S.2d 520), which vouching, over objection, was repeatedly reinforced and reemphasized.

In view of the closeness of the factual issue as to identification in this single witness case, the cumulative effect of these three errors served to deprive the defendant of a fair trial, may well have tainted the jury's deliberations, and mandates reversal of the judgment 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 act improperly in imposing consecutive sentences for the defendant's rape and robbery convictio...