People v. Dickerson
| Citation | 70 A.D.2d 623,416 N.Y.S.2d 622 |
| Parties | The PEOPLE, etc., Respondent, v. John W. DICKERSON, Appellant. |
| Decision Date | 14 May 1979 |
| Court | New York Supreme Court — Appellate Division |
John F. Middlemiss, Jr., Hauppauge (Anna M. Perry, Stony Brook, of counsel), for appellant.
Patrick Henry, Dist. Atty., Riverhead (Harry Organek, Ronkonkoma, of counsel), for respondent.
Before HOPKINS, J. P., and DAMIANI, TITONE and SUOZZI, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered May 24, 1978, convicting him of burglary in the first degree and menacing, upon a jury verdict, and imposing sentence.
Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.
We reverse the judgment for the following reasons:
First: The prosecutor elicited the fact that the defendant's alibi witness had not reported to the police, or the District Attorney, the fact that the defendant had allegedly been with her during the time the crime was committed. Moreover, the prosecutor improperly referred to this during his summation. The foregoing conduct of the prosecutor constituted error (see People v. Rivera, App.Div., 416 N.Y.S.2d 621 (decided herewith); People v. Altman, 63 A.D.2d 684, 404 N.Y.S.2d 663; People v. Mims, 59 A.D.2d 769, 398 N.Y.S.2d 721; People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679).
Second: The court failed to promptly give a specific instruction to the jury that "an alibi witness has no obligation to come forward and contact the police or the District Attorney" (see People v. Smoot, 59 A.D.2d 898, 899, 399 N.Y.S.2d 133, 135, see, also, People v. Clark, 64 A.D.2d 669, 407 N.Y.S.2d 236).
Third: The trial court failed to further instruct the jury, during the charge, 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 (see People v. Clark, supra ).
Fourth: As conceded by the People, the prosecutor improperly attempted to impeach the alibi witness by use of an allegedly prior inconsistent statement made by a third party who was not a witness at trial.
Fifth: The People were permitted to improperly bolster the identification testimony of the complaining witness, who was the sole witness to the incident. Thus, Detective Cassidy testified: "I advised the defendant that he was under arrest, that the little girl had made (sic) him in a lineup." This was clearly improper since the witness was able to identify the defendant at the trial (see People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841; People v. Joyner, 54...
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...testify and his credibility was not in issue. Under New York law, it was error to allow this question. See People v. Dickerson, 70 A.D.2d 623, 416 N.Y.S.2d 622, 623 (2nd Dept.1979); People v. Schwartzman, 24 N.Y.2d 241, 299 N.Y.S.2d 817, 821, 247 N.E.2d 642, 644 (1969) In addition, the pros......
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