People v. Cwikla

• Decision Date: 29 October 1974
• Citation: 45 A.D.2d 584,360 N.Y.S.2d 33
• Parties: The PEOPLE of the State of New York, Respondent, v. Roger CWIKLA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 33

360 N.Y.S.2d 33

45 A.D.2d 584

The PEOPLE of the State of New York, Respondent, v. Roger CWIKLA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Oct. 29, 1974.

Daniel J. Brooks, New York City, of counsel (William E. Hellerstein and William J. Gallagher, New York City, attorneys), for defendant-appellant.

Kenneth P. Olsen, New York City, of counsel (Mario Merola, Dist. Atty.), for respondent.

Before NUNEZ, J.P., and KUPFERMAN, MURPHY, LUPIANO and TILZER, JJ.

PER CURIAM:

The defendant was convicted of the crimes of Murder, Manslaughter in the Second Degree, Possession of a Dangerous Instrument as a Misdemeanor and two counts of Burglary in the First Degree.

Although there was sufficient evidence to justify the jury's verdict, the prejudicial effect of cumulative errors deprived the defendant of a fair trial and accordingly, the judgment must be reversed and a new trial directed.

The heart of the defense rested upon the claim of alibi. In that connection several witnesses, including defendant's sister and a neighbor, testified that the defendant was at home on the evening in question. The witnesses' testimony also indicated that defendant's parents were at home on that evening. The parents, however, were not called to testify, a fact which troubled at least one juror who inquired of the Court as to whether 'defendant's parents were ever present at his trial.' At that time the Court properly informed the jury that the failure to call the parents should not be held against the defendant. Nevertheless, the next day, the prosecutor, in his summation, persisted in making references to the failure to call the parents to testify. Subsequently, upon conclusion of the Court's charge, defendant's counsel requested curative instructions with respect to the prosecutor's comments, which request was denied on the ground that the Court had previously so instructed the jury.

Of course, the prosecutor's comments on the failure to call the parents as witnesses were improper (see People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532, 245 N.E.2d 194; People v. Conklin, 39 A.D.2d 160, 332 N.Y.S.2d 826; People v. Figueroa, 38 A.D.2d 595, 328 N.Y.S.2d 514), and since such remarks were directed to the crucial issue presented by the defense, they cannot be disregarded as harmless. Nor was the Court correct in relying upon the admonition given to the jury on the previous day, for the prosecutor himself had disregarded the Court's prior and correct ruling by continuing to emphasize the very point which the juror had raised. Similarly, error was committed when the prosecutor, in his summation, referred to defendant as 'stoneface' and invited the jury to observe the defendant and 'size him up . . . like you sized up all the witnesses.' Defendant, however, did not take the stand and such, in effect, constituted improper comment on the defendant's failure to testify.

Additionally, the Court erred with respect to its charge...