People v. Cruz

• Decision Date: 05 December 1983
• Citation: 98 A.D.2d 726,469 N.Y.S.2d 138
• Parties: The PEOPLE, etc., Respondent, v. Ricardo CRUZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 138

469 N.Y.S.2d 138

98 A.D.2d 726

The PEOPLE, etc., Respondent, v. Ricardo CRUZ, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 5, 1983.

William E. Hellerstein, New York City (Allen E. Burns, New York City, of counsel; Murray E. Singer on the brief), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Merri Turk Lasky and Richard G. Denzer, Kew Gardens, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, WEINSTEIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered September 18, 1980, convicting him of burglary in the second degree, criminal possession of stolen property in the third degree and possession of burglar's tools, 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 trial of this case involved the burglary of the residence of Mario Porzio on October 9, 1979. The proof presented on the People's case consisted almost entirely of the testimony of Police Officer Moran. Moran testified that while in an unmarked vehicle on a special assignment with the anti-crime patrol he observed defendant standing in front of a bar looking up to the roof of the bar where another individual, later identified as James Stoll, was standing. Stoll moved from the roof of the bar to a window ledge of the adjoining building and at one point defendant called up to him. Stoll then walked to the back of the building and approximately 30 seconds later a marked police car drove by. Stoll then returned to the ledge where, with the aid of a screwdriver, he opened the window leading to Mario Porzio's apartment. He returned to the roof of the bar, dropped the screwdriver to the ground, returned to the ledge and entered the opened window. Defendant picked up the screwdriver and placed it on the ground behind a dumpster on a nearby corner. Moran and his partner, Police Officer DeLeon, subsequently apprehended Stoll in an alleyway behind the burglarized building. As they approached, Stoll dropped a set of keys which was later found to belong to Porzio. Defendant was also arrested and upon searching him the police recovered a carpet knife, pliers, a wood carving knife and jumper cables. A screwdriver was recovered from behind the dumpster where defendant was seen to have placed it.

At the defendant's trial, Stoll, who had previously pleaded guilty, testified that he had never seen or met defendant prior to their arrest. Stoll admitted his commission of the crime but denied that defendant had participated. On cross-examination, the prosecutor sought to impeach Stoll's credibility by asking numerous questions concerning Stoll's failure to provide information exculpating defendant from the time of Stoll's arrest through many of his court appearances prior to his plea of guilty. However, since Stoll pleaded guilty to the burglary only one week prior to the commencement of defendant's trial, any exculpatory statement Stoll might have made prior to his own plea would have been tantamount to an admission of his own guilt. The improper questions concerning Stoll's silence thus mandate reversal. Although we believe the error was preserved for review, lest there be any doubt, we reach the error in the interest of justice as well.

Reversal is also required because of the prosecutor's improper comments made during his opening statement and in summation. The prosecutor claimed that the keys recovered from Stoll were to the jewelry store below the burglarized apartment and that defendant and Stoll intended to later burglarize the jewelry store. He also stated that defendant was an unemployed porter, implying thereby that defendant needed money. The only reference during the trial to the jewelry store was Mario Porzio's testimony that the jewelry store owner was his landlord. The stolen keys were not the keys to the jewelry store and nothing else in the record indicated that defendant and Stoll intended to burglarize the jewelry store. On appeal, the People admit with commendable candor that the mentioned statements were improper but urge that the error was rendered harmless by the weight of the other proof (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). We do not agree that the evidence of defendant's guilt was so overwhelming as to render statements of such prejudicial magnitude harmless.

Finally, we note that the prosecution did not call Officer DeLeon and until the time of summation it did not offer an explanation for its failure to do so. When defense counsel requested the court to deliver a missing witness charge, the court initially refused but later changed its mind. The prosecutor then asked for an opportunity to prove to the jury that Officer DeLeon was outside the jurisdiction of the State. The court denied this request. In its charge the court stated that "an inference may be drawn that if the witness had been called to testify that his testimony would not materially aid or benefit the People's case". Defendant was entitled to have the jury charged that the failure of a party to call a witness under his control who is shown to be in a position to give material evidence gives rise to an inference that the testimony would have been unfavorable (see People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231; People v. Brown, 34 N.Y.2d 658, 355 N.Y.S.2d 579, 311 N.E.2d 650; People...