People v. Elder

Citation207 A.D.2d 498,615 N.Y.S.2d 915
PartiesThe PEOPLE, etc., Respondent, v. James ELDER, Appellant.
Decision Date22 August 1994
CourtNew York Supreme Court Appellate Division

Trevor L.F. Headley, Brooklyn, for appellant, and appellant pro se.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Tammy J. Smiley, and Edward Irizarry, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, JOY and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered November 21, 1990, convicting him of attempted murder in the second degree, assault in the first degree (two counts) and criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion, and a new trial is ordered. No questions of fact have been raised or considered.

On appeal, the defendant contends that he was deprived of a fair trial by several improper comments that were made by the prosecutor during her summation. We agree. In view of the prosecutor's comments regarding two defense witnesses and a prosecution witness, we conclude that the prosecutor did not stay within "the four corners of the evidence" (People v. Ashwal, 39 N.Y.2d 105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564). Because the instances of prosecutorial misconduct were flagrant and closely related to the credibility issues presented at trial, they substantially prejudiced defendant's case (see, People v. Dombrowski, 163 A.D.2d 873, 558 N.Y.S.2d 401).

The defendant also contends that he was unfairly prejudiced by the admission of evidence of uncharged criminal conduct. We agree. The prosecution was allowed, over objection, to introduce evidence that the defendant was involved in a shooting nearly two years before the case at bar. This alleged shooting was not charged in the indictment and evidence of it could only have tended to persuade the jury that the defendant had a propensity towards violence. It is well settled that evidence of crimes that are not charged in the indictment must be excluded when they are offered solely to show such propensity (see, People v. Hudy, 73 N.Y.2d 40, 54-55, 538 N.Y.S.2d 197, 535 N.E.2d 250; People v. Miguel, 146 A.D.2d 808, 809, 537 N.Y.S.2d 286).

The defendant further contends in his supplemental pro se brief that he was denied a fair...

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    • United States
    • U.S. District Court — Eastern District of New York
    • September 30, 1999
    ... ...         1. Introduction ...         At approximately 5:30 p.m. on January 13, 1989, a number of young people, most in their teens and early twenties, left Mid-wood High School in Brooklyn where they had just attended a basketball game and went to the nearby ... ...
  • People v. Casiano
    • United States
    • New York Supreme Court — Appellate Division
    • March 22, 2017
    ...v. Bartello, 243 A.D.2d 483, 483, 665 N.Y.S.2d 281 ; People v. Rufrano, 220 A.D.2d 701, 702, 632 N.Y.S.2d 648 ; People v. Elder, 207 A.D.2d 498, 499, 615 N.Y.S.2d 915 ), and the defense is permitted to exceed the scope of a direct examination in order to prove a relevant proposition such as......
  • People v. Cotton
    • United States
    • New York Supreme Court — Appellate Division
    • September 22, 1997
    ...related to the credibility issue presented at trial, the defendant's case was substantially prejudiced (see generally, People v. Elder, 207 A.D.2d 498, 615 N.Y.S.2d 915; People v. Dombrowski, 163 A.D.2d 873, 558 N.Y.S.2d The defendant's remaining contentions are either without merit or are ......
  • People v. McEachern
    • United States
    • New York Supreme Court — Appellate Division
    • March 10, 1997
    ...deprived of the opportunity to elicit evidence that would support his defense is speculative and without merit (cf., People v. Elder, 207 A.D.2d 498, 499, 615 N.Y.S.2d 915). RITTER, J.P., and PIZZUTO, ALTMAN and KRAUSMAN, JJ., ...
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