People v. Cohen

• Decision Date: 06 July 1971
• Citation: 322 N.Y.S.2d 784,37 A.D.2d 704
• Parties: The PEOPLE of the State of New York, Respondent, v. Carlos COHEN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 784

322 N.Y.S.2d 784

37 A.D.2d 704

The PEOPLE of the State of New York, Respondent, v. Carlos COHEN, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

July 6, 1971.

D. J. Sullivan, New York City, for respondent.

R. Bloom, for defendant-appellant.

Before STEVENS, P.J., and CAPOZZOLI, McGIVERN, KUPFERMAN and MURPHY, JJ.

PER CURIAM.

Judgment of the Supreme Court, Bronx County, rendered June 13, 1969, convicting the defendant after a jury trial, is affirmed.

There was objection to only some of the Prosecutor's allegedly prejudicial remarks at the trial and no exceptions to the charge with respect to the items raised on this appeal. CCP § 420a.

No item in and of itself nor the totality was such as to render the proceeding unfair in order to bring into play CCP § 527 for a new trial in the interest of justice.

Cases where the district attorney has exceeded the balance of fair advocacy, People v. Ross, 14 A.D.2d 519, 216 N.Y.S.2d 953 (1st Dept.1961) cannot be elasticized to cover this record. In People v. Luberto, 212 App.Div. 691, 209 N.Y.S. 544 (3rd Dept.1925), the district attorney in his opening had given the contents of an alleged written confession and then failed to offer the alleged confession in evidence. In People v. Ware, 13 A.D.2d 1015, 216 N.Y.S.2d 644 (2d Dept.1961), the district attorney in his opening stated that a co-defendant would testify and indicated the nature of the testimony, which would indeed be prejudicial to the defendant, and then he did not produce the witness nor the evidence involved.

Here, there was evidence from which the jury could conclude that there had been flight. The jury specifically was conscious of the question and sent a note saying: 'Respectfully request explanation of guilt of flight. Would like to know exactly how much weight this carries in reaching a decision', and the trial judge then reread that portion of his charge which covered the subject. The only objectionable deviation between the opening and the proof given to try to substantiate the opening, was that the prosecutor contended the flight had been to Mexico, when his proof was San Diego, California, a non-material difference under the circumstances.

As for the problem with the interpreter, defense counsel, after being given the opportunity for due deliberation with the defendant, made it clear that a mistrial would not be sought. The court then indicated a fair procedure to be followed, with the chief interpreter being substituted, and no objection was taken thereto.

In time-honored fashion, the resolution of the questions of credibility, of testimonial conflicts and inconsistencies, and a determination of the guilt or innocence of the defendant was for the jury. See People v. Seidenshner, 210 N.Y. 341, 359, 104 N.E. 420, 426 (1914).

All concur except STEVENS, P.J., and MURPHY, J., who dissent in the following memorandum by MURPHY, J.:

We would reverse and order a new trial. The case concerns the fatal shooting of one Jose Perea in Bronx County. The incident was called to the attention of the police by one Raul Coto who was himself arrested and charged with the homicide. When originally, questioned, he remained silent with respect to his participation in the crime or of witnessing the shooting. However, later he implicated one Ruiz and the defendant, Carlos Cohen. At the trial, Coto was the principal witness against the two defendants. The case against Ruiz was dismissed without being submitted to the jury. Cohen was found guilty of Murder in the first degree and sentenced to life imprisonment.

Defendant contends that certain statements made by the Prosecutor in the course of the trial were highly prejudicial to him and so influenced the jury as to deny him a fair trial. That in addition certain of the rulings of the Court constituted reversible error. We are of the opinion, after examining the entire record and considering all of the comments made by the Prosecutor, that he did exceed the bounds of mere aggressiveness and that this coupled with erroneous Court rulings so prejudiced the jury as to prevent a fair trial and determination on the merits.

Defendant argues that the opening statement of the Prosecutor was prejudicial in that certain allegations made by the Prosecutor were never proved or even attempted to be proved. The pertinent portion of his opening to the jury is as follows:

'* * * The police responded. They went looking for Carlos Cohen. They found Ruiz soon enough, but not Cohen. They found Cohen months and months later. We'll show you he fled. He was conscious of his guilt and he fled to Mexico where he was found months later, and we will show you that we brought him back from Mexico to California and extradition to New York.'

No evidence of any kind was ever offered by the People with respect to the defendant fleeing to Mexico or that he had ever been there or that it was his conscious guilt that prompted his fleeing there. With respect to this, except for a statement made by the Prosecutor to the Court, after the jury had rendered its verdict and had been discharged, the record is totally barren of any proof whatever with regard to Mexico or of any consciousness of guilt. The record reveals that the Prosecutor was keenly aware of this for after the jury had reached its verdict and had been discharged, the Prosecutor sought the permission of the Court to place the following statement on the record:

'In my opening I think I told this jury I am pretty sure I did that I would indicate and show that the defendant fled to Mexico. At that time--I think it's incumbent upon me to make this statement having consulted my office on it--I had every intention of showing through extradition--that the Governor sign the warrant--this was my intention at that time--I simply wanted to put this on the record because there may be a question of good faith here and I do want to show the efforts that I made and the thoughts I had in proving the fact that he was in Mexico. No doubt about that, but, of course, during the trial in my summation I just dropped it, not having offered any proof on that subject.'

Can it be denied that the opening statement portrayed the defendant as a fugitive from justice; that the seeds of Criminal Contempt had been planted? Moreover, the Court did nothing in its charge or otherwise to play down the impression which the Prosecutor had portrayed of a guilty person fleeing to Mexico. The law is clear that where the prosecutor alludes to certain inflammatory prospective proof that is not forthcoming, and no instruction is given by the Court to irradicate the impression upon the jury, then the defendant has been denied a fair trial. People v. Ware, 13 A.D.2d 1015, 216 N.Y.S.2d 644. In the Ware case, Supra, the Prosecutor in his opening address said that there would be certain evidence offered with respect to a robbery that was in issue. The proof was not offered. The Trial Court failed to deal with the issue in its charge. The Appellate Division reversed the conviction in a Memorandum Opinion on the ground that the defendant had been deprived of a fair trial. While it may be argued that the Prosecutor acted in good faith and really did intend to offer the necessary proof only to change his mind, the well-intentioned or good faith of the Prosecutor is not controlling, for it is stated in People v. Luberto, 212 App.Div. 691, 209 N.Y.S. 544:

'We do not impute bad faith to the District Attorney. He undoubtedly intended to use the statement against the defendant and in the progress of the trial changed his mind. But the mischief was accomplished. * * * The remarks of the district attorney surrounded by the influence of his official position were not lost on the jury. * * * The nature of the accusation had a tendency to inflame the minds of the jury and the opening remarks unintentionally, but nevertheless potentially must have contributed to destroy their mental poise.'

In charging the law of flight, the Court failed to refer to other possible motives for flight. The Court's charge suggests that it believed that there was flight and that such flight indicated consciousness of guilt. Perhaps the inadequacy of the explanation of flight by the Court in its charge is demonstrated by a note from the jury to the Court: 'Respectfully request explanation of guilt of flight.'

In addition to the foregoing, we are of the opinion that the conduct and comment of the Prosecutor during the entire trial deprived the defendant of a fair trial. At one point the Prosecutor rehabilitated Coto, his only witness on the identification of the defendant, by eliciting prior consistent statements and asking if the grand jury had dismissed the charges against him for the same crime with which defendant Cohen was being tried.

During summation, the Prosecutor stated:

'--and sitting as a juror in a case of this kind, gentlemen, if you don't do your job, you are not--you are doing a disservice to humanity, to society and to your country--'

This, alone, is sufficient grounds for reversal of the conviction. People v. Tassiello, 300 N.Y. 425, 91 N.E.2d 872; People v. Slover, 232 N.Y. 264, 133 N.E. 633; People v. Ross, 14 A.D.2d 519, 216 N.Y.S.2d 953; People v. Christie, 16 A.D.2d 598, 229 N.Y.S.2d 779; People v. Damon, 24 N.Y.2d 256, 299 N.Y.S.2d 830, 247 N.E.2d 651; People v. Tunstall, 5 A.D.2d 338, 171 N.Y.S.2d 666; People v. Burley, 282 App.Div. 408, 122 N.Y.S.2d...