People v. Garcia
| Decision Date | 04 December 1972 |
| Citation | 338 N.Y.S.2d 476,40 A.D.2d 983 |
| Parties | The PEOPLE etc., Respondent, v. George GARCIA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before RABIN, P.J., and HOPKINS, SHAPIRO, MUNDER and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 18, 1972, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law and in the interests of justice, and new trial ordered.
Defendant was convicted of manslaughter in the second degree, for the fatal shooting of Israel Guadalupe in the early morning of August 2, 1968. At the trial, defendant testified that the defendant, without provocation, attacked him with a garbage can and that, when defendant grabbed a rifle from a companion to defend himself (Penal Law, § 35.15, subd. 2, par. (a)), it went off, killing the decedent. Whether defendant acted with the specific mental state required by the statute, i.e., 'recklessly cause(d) the death of another person' (Penal Law, § 125.15, subd. 1) and whether the slaying was justified because the decedent had been unlawfully using deadly physical force and defendant knew that he could not retreat with complete safety (Penal Law, § 35.15, subd. 2, par. (a)) were issues upon which the evidence was very close.
Upon cross-examination of a key prosecution eyewitness, one Rodriguez, defense counsel attempted to introduce evidence that Rodriguez was under indictment and was then in custody for shooting at defendant. The trial court excluded all inquiries on this subject. In our opinion, the trial court erred and deprived defendant of a fair trial. The existence of pending indictment against a prosecution witness for an act committed against defendant is a proper subject for cross-examination, since it is relevant to show the witness' possible bias toward defendant and to show his possible interest in gaining favorable treatment by testifying for the prosecution (3A Wigmore on Evidence, § 949; People v. Milks, 70 App.Div. 438, 74 N.Y.S. 1042; Purdee v. State, 118 Ga. 798, 45 S.E. 606; Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; United States v. Masino, 2 Cir., 275 F.2d 129). Nor can this error be treated as harmless. The impact of this information upon the jury, in determining Rodriguez' credibility, might have been considerable, in view of testimony that Rodriguez had threatened to kill defendant shortly before and after Guadalupe's slaying.
Moreover, certain improper remarks of the Assistant District Attorney in his summation 'had a decided tendency to blur the issue for decision and to prejudice the jury' (People v. Carborano, 301 N.Y. 39, 42, 92 N.E.2d 871). He unfairly attacked...
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Miller v. Smith
...the jury regarding the burden of proof and improperly maligning the defendant's decision not to testify); People v. Garcia, 40 A.D.2d 983, 338 N.Y.S.2d 476 (2d Dep't 1972) (making prejudicial comments alluding to the immigrant community where the crime took place). This last challenge fails......
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People v. Clark
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People v. Trappier
...acquittal would be a mockery and travesty of justice, were gratuitous and might have unduly prejudiced the jury (see People v. Garcia, 40 A.D.2d 983, 338 N.Y.S.2d 476). HOPKINS, J. P., and LATHAM and COHALAN, JJ., GULOTTA, Justice, concurs as to the reversal of the sentence imposed May 16, ......