People v. Clark

• Citation: 407 N.Y.S.2d 236,64 A.D.2d 669
• Parties: The PEOPLE, etc., Respondent, v. Amos CLARK, Appellant.
• Decision Date: 24 July 1978
• Court: New York Supreme Court — Appellate Division

Page 236

407 N.Y.S.2d 236

64 A.D.2d 669

The PEOPLE, etc., Respondent, v. Amos CLARK, Appellant.

Supreme Court, Appellate Division, Second Department.

July 24, 1978.

McCarthy & Dorfman, Glen Cove (Martin S. Dorfman, Glen Cove, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Vincent J. Carroll, Jr., Kew Gardens, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, O'CONNOR, TITONE and SHAPIRO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 13, 1976, convicting him of robbery in the first degree and burglary in the second 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.

During cross-examination of an alibi witness, who was defendant's common-law wife, the prosecutor, over objection, persisted in inquiring whether she ever went to the police or the District Attorney with "this story". Such a line of inquiry may be proper provided: (1) a specific instruction be promptly given to the jury that "an alibi witness has no obligation to come forward and contact the police or the District Attorney" (People v. Smoot, 59 A.D.2d 898, 899, 399 N.Y.S.2d 133, 135); and (2) that the jury be further instructed that it is to consider such testimony and to give it such weight, if any, on the issue of credibility, as it deems proper under the circumstances. No such instructions were given here. Under the circumstances, we hold the line of questioning pursued to be prejudicial (see People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679; People v. Wilson, 60 A.D.2d 920, 401 N.Y.S.2d 576).

On cross-examination of a defense witness who had prepared a letter setting forth the time defendant started work on the day in question, the prosecutor elicited that a second letter had been prepared by the witness on the day prior to when she testified. The court's comment on defense counsel's refusal to give this second letter to the prosecution, coupled with the reference to this letter in the prosecutor's summation, amounted to a prejudicial inference to the jury that defense counsel was fabricating evidence. Furthermore, the prosecutor's summation, although largely provoked by defense tactics, was in its entirety highly prejudicial. In addition to the improper comment concerning the second letter, the prosecutor erred in vouching for the credibility of prosecution witnesses and in denigrating defense counsel and defendant's alibi and alibi witness (see People v. Garcia, 40 A.D.2d 983, 338 N.Y.S.2d 476; People v. Jones, 47 A.D.2d 761, 365 N.Y.S.2d 36; People v. Petrucelli, 44 A.D.2d 58, 353 N.Y.S.2d 194; Code of Professional Responsibility EC 7-24).

MOLLEN, P. J., and HOPKINS and O'CONNOR, JJ., concur.

TITONE, J., concurs in the result, with the following memorandum, in which SHAPIRO, J., concurs:

Although I concur for reversal, I do not agree with the majority's decision insofar as it dilutes the thrust and effect of this court's decision in People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679. According to the majority, Hamlin stands for the proposition that where a witness for the defendant gives alibi testimony on direct, the prosecutor on cross-examination may inquire whether he or she ever went to the police or District Attorney with the story, provided the Trial Judge promptly instructs the jury that the alibi witness had no obligation to come forward and contact such law enforcement agencies, and that the jury be further instructed that it is to receive such testimony and give it whatever weight it deems proper under the circumstances.

However, the decision in Hamlin was all inclusive; not only did it assign as error the failure of the trial court to give the instructions noted above, but also condemned both prosecutorial cross-examination and summation pertaining to an alibi witness' failure to come forward and divulge his or her story to the police or District Attorney. This is clearly evinced by the following language extracted from the majority memorandum (People v. Hamlin, 58 A.D.2d 631, 632, 395 N.Y.S.2d 679, 680, Supra ):

"In our opinion, the defendant-appellant was denied a fair trial by the persistent and improper efforts of the prosecutor to discredit the testimony of two of his alibi witnesses. We also believe, in connection with such prosecutorial conduct, that the trial court committed reversible error in allowing it to continue and then giving it credence in the charge to the jury * * * Four alibi witnesses, including defendant's brother, Billy Hamlin, and an acquaintance of defendant, Jimmy Burden, testified that at the time the alleged crime was committed (7:00 p. m. on February 21, 1975), defendant was playing cards in the office of a junkyard. During the cross-examination of Billy Hamlin, the witness was asked whether he had refused to answer questions addressed to him by the prosecutor earlier in the witness room as to what had happened on February 21, 1975. Although the trial court advised the jury that the witness was under no obligation to answer such questions, It overruled defense counsel's objection and permitted the prosecutor to continue. During the cross-examination of Jimmy Burden, the prosecutor questioned him extensively about his failure to respond to a subpoena to appear in the District Attorney's office relative to the case. The trial court also overruled an objection to this line of interrogation * * *

"We believe that such prosecutorial tactics were fundamentally unfair and prejudicial, and should have...