People v. Hearns
| Decision Date | 11 February 1963 |
| Citation | 18 A.D.2d 922,238 N.Y.S.2d 173 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Elmer HEARNS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Anthony F. Marra, New York City, for appellant; Leon B. Polsky, New York City, of counsel.
Edward S. Silver, Dist. Atty., Brooklyn, for respondent; Aaron Nussbaum, Brooklyn, of counsel.
Before BELDOCK, P. J., and KLEINFELD, CHRIST, BRENNAN and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 16, 1960 after a jury trial, convicting him of robbery in the first degree and of grand larceny in the second degree, and sentencing him, as a second felony offender, to serve a term of fifteen to sixteen years.
Judgment reversed on the law, and a new trial ordered. The questions of fact raised were considered; the findings of fact implicit in the jury's verdict are affirmed.
In our opinion, defendant was deprived of a fair trial. The People's evidence in chief consisted of proof that a robbery had been committed by two men and that defendant, during his interrogation by an assistant district attorney, had admitted that he had loaned a gun to one of the two men for the purpose of committing the crime. Defendant contended that his alleged admissions were obtained after he had been severely beaten and threatened by police officers. It is undisputed that, in the absence of such alleged amissions, the defendant could not have been convicted. The crucial issue in the case, therefore, was whether the admissions were coerced or voluntary. With respect to this issue the prosecutor, in his summation, stressed that two of the principal witnesses, namely, a police officer and a correction officer, had testified against the defendant despite the fact that such officers were of the same color or race as the defendant.
The defendant's objection to such reference to race and color was overruled. In our opinion such a plea to the jury, based on color and race, no matter how artfully phrased, constitutes an appeal to prejudice and passion; it violates every basic concept of fair trial; and it vitiates the resulting judgment of conviction (Abbate v. Solan, 257 App.Div. 776, 15 N.Y.S.2d 332; People v. Castellano, 273 App.Div. 978, 78 N.Y.S.2d 356; Bowen v. Mahoney Coal Corp., 256 App.Div. 485, 10 N.Y.S.2d 454; Saunders v. Champlain Bus Corp., 263 App.Div. 683, 34 N.Y.S.2d 447; Skuy v. United States, 10 Cir., ...
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