People v. Hernandez
| Decision Date | 20 February 1979 |
| Docket Number | No. 2030,2030 |
| Citation | 67 A.D.2d 988,413 N.Y.S.2d 428 |
| Parties | The PEOPLE, etc., Respondent, v. Felix HERNANDEZ, Appellant. (Ind./76) |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Barry D. Leiwant, New York City, of counsel), for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Reina Barcan, Brooklyn, of counsel), for respondent.
Before HOPKINS, J. P., and TITONE, SUOZZI and COHALAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 20, 1977, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, and new trial ordered. No issue has been presented with respect to the facts.
"In determining the requirements of the court's charge to the jury * * *defendant is entitled to the 'most favorable view of the record' " (see People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 891, 260 N.E.2d 527, 528). Viewing the record in the light most favorable to him, it is apparent that an instruction to the jury on the defense of justification was called for in this case (see People v. Steele, supra, see, also, People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759). The failure of the trial court to instruct the jury on this issue requires a reversal and a new trial (see People v. Steele, supra; People v. Benjamin, 47 A.D.2d 861, 366 N.Y.S.2d 44).
Further, the court's charge with respect to the effect of a witness having a criminal record was inadequate (see People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637; People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) and prejudicial to defendant's rights. In People v. Coleman, 7 A.D.2d 155, 180 N.Y.S.2d 978 the trial court erred by giving a charge containing an implicit message that, although rare, defense witnesses have been known to tell the truth. At bar, the charge suggests that two prosecution witnesses, even though they had criminal records, may (in the Trial Judge's opinion) very well have been telling the truth. The instruction, as given, was prejudicial in view of the nature and quality of the People's evidence.
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People v. Gray
...is 'some evidence' in the case (People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759; supra; People v. Hernandez, 67 A.D.2d 988, 413 N.Y.S.2d 428 (2d Dept.1979). In light of the strong constitutional considerations in favor of allowing defendants to have their defenses submitte......
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People v. Coleman
..."(t)he fact that a (prosecution witness) has a criminal record is no proof at all that he is untruthful" (see People v. Hernandez, App.Div., 413 N.Y.S.2d 428 (2d Dept., 1979)). Defense counsel properly excepted to all of the afore-mentioned deficiencies in the ...
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People v. Andino
...he had a prior criminal record, warrants reversal in view of the nature and quality of the People's evidence (see People v. Hernandez, 67 A.D.2d 988, 989, 413 N.Y.S.2d 428; People v. Coleman, 70 A.D.2d 600, 416 N.Y.S.2d 81). In particular, we find that the trial court erred by commenting, "......