People v. Diggs

Citation185 A.D.2d 990,587 N.Y.S.2d 406
PartiesThe PEOPLE, etc., Respondent, v. Bernard DIGGS, Appellant.
Decision Date31 August 1992
CourtNew York Supreme Court Appellate Division

Philip L. Weinstein, New York City (Laura Hurwitz, of counsel), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Michael Gore, and Gilbert Klaperman, of counsel), for respondent.

Before BALLETTA, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered September 6, 1990, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

While no errors of law have been preserved for appellate review (see, People v. Medina, 53 N.Y.2d 951, 953, 441 N.Y.S.2d 442, 424 N.E.2d 276; People v. Larsen, 157 A.D.2d 672, 549 N.Y.S.2d 772), we nevertheless feel compelled, under the circumstances of this case, to reach them in the interest of justice and to reverse (see, People v. Ortiz, 125 A.D.2d 502, 509 N.Y.S.2d 418; People v. Hamilton, 121 A.D.2d 176, 502 N.Y.S.2d 747).

It is axiomatic that a criminal defendant has the constitutional right to remain silent at the time of his arrest (N.Y.Const., art. I, § 6; U.S. Const. 5th Amend.) and his exercise of that right cannot be used by the People as part of their direct case (see, People v. Basora, 75 N.Y.2d 992, 993, 557 N.Y.S.2d 263, 556 N.E.2d 1070). Here, the prosecutor, during the People's direct case, elicited testimony from the arresting police detective that established that the defendant had refused to answer questions after being informed of his Miranda rights. Although the court immediately struck the testimony and gave curative instructions, this constitutional error mandates reversal since there exists a reasonable possibility that it might have contributed to the defendant's conviction (see, People v. Ayala, 75 N.Y.2d 422, 431, 554 N.Y.S.2d 412, 553 N.E.2d 960).

In addition, the defendant's right to a fair trial was vitiated by the numerous nonconstitutional errors committed by the prosecutor during the course of the trial. Despite the strenuous efforts of the court, which ultimately resulted in the court's terminating the cross-examination of the defendant, the pervasive nature of these errors similarly warrant reversal.

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12 cases
  • People v. Mallet
    • United States
    • New York Supreme Court
    • March 23, 1995
    ...157 A.D.2d 519, 549 N.Y.S.2d 710 (Reversal required) ], but not if routinely destroyed before defendant's request. People v. Diggs, 185 A.D.2d 990, 587 N.Y.S.2d 406. The defendant here may be prejudiced by the loss or destruction of Rosario material as it related to the description of the p......
  • People v. McKinley
    • United States
    • New York Supreme Court — Appellate Division
    • March 14, 1994
    ...bad faith on the part of the prosecution (see, People v. Rice, 75 N.Y.2d 929, 932, 555 N.Y.S.2d 677, 554 N.E.2d 1265; People v. Diggs, 185 A.D.2d 990, 587 N.Y.S.2d 406; People v. Hyde, 172 A.D.2d 305, 568 N.Y.S.2d Contrary to the defendant's contention, the People properly established a cha......
  • People v. Hines
    • United States
    • New York Supreme Court — Appellate Division
    • May 31, 1996
    ...not required because the tape was destroyed pursuant to routine police procedure before defendant requested it (see, People v. Diggs, 185 A.D.2d 990, 587 N.Y.S.2d 406; cf., People v. Parker, 157 A.D.2d 519, 549 N.Y.S.2d 710, lv. denied 76 N.Y.2d 793, 559 N.Y.S.2d 998, 559 N.E.2d 692). Moreo......
  • People v. Green
    • United States
    • New York Supreme Court — Appellate Division
    • November 10, 1997
    ...(see, People v. Gibbs, 211 A.D.2d 641, 620 N.Y.S.2d 484; People v. Grice, 203 A.D.2d 587, 588, 611 N.Y.S.2d 25; People v. Diggs, 185 A.D.2d 990, 991, 587 N.Y.S.2d 406; People v. Deas, 174 A.D.2d 751, 752, 571 N.Y.S.2d The defendant's remaining contentions are without merit (see, People v. M......
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