People v. Butler
| Decision Date | 23 May 1977 |
| Citation | 395 N.Y.S.2d 36,57 A.D.2d 931 |
| Parties | The PEOPLE, etc., Respondent, v. Lester Henry BUTLER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein and William J. Gallagher, New York City (Louis Aaron Goldstone, New York City, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (George Freed, Kew Gardens, of counsel, Alan Rosenblatt and David Beekman on the brief), for respondent.
Before MARTUSCELLO, J. P., and LATHAM, SHAPIRO and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 26, 1972, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing a sentence of a one-year term of imprisonment.
Judgment reversed, on the law and as a matter of discretion in the interest of justice, and indictment dismissed.
In our opinion, on this record, the defendant was deprived of a fair trial. The rhetorical questions posed by the Trial Judge during the charge communicated disbelief in the defendant's innocence (see People v. Bell, 38 N.Y.2d 116, 122, 378 N.Y.S.2d 686, 691, 341 N.E.2d 246, 249). Although the trial court marshalled the People's evidence, it did not adequately marshal the evidence in support of the defense contentions or sufficiently explain the application of the law to the facts (see People v. Miles, 48 A.D.2d 706, 707, 368 N.Y.S.2d 255, 257). The Trial Judge's comments during the testimony of the defendant's wife, and again in his charge, indicated that he did not believe that she was telling the truth (see Villanti v. Rusakowicz, App.Div., 393 N.Y.S.2d 771 (2d Dept. 1977)).
The prosecutor's conduct in summation, although not objected to, contained serious errors in that he offered his personal belief as to the truthfulness of the complainant's testimony (see People v. Figueroa, 38 A.D.2d 595, 328 N.Y.S.2d 514; People v. Davis, 29 A.D.2d 556, 285 N.Y.S.2d 719), while he repeatedly referred to the defendant as a "thief", "con man" and "swindler" (see People v. Sarmiento, 40 A.D.2d 562, 334 N.Y.S.2d 210).
Under the circumstances of this case, since defendant has served his sentence, the interest of justice will be accomplished by the dismissal of the indictment. The decision in People v. Allen, 39 N.Y.2d 916, 386 N.Y.S.2d 404, 352 N.E.2d 591 is inapposite on its facts.
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