People v. Ivey

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SIMONS
• Citation: People v. Ivey, 443 N.Y.S.2d 452, 83 A.D.2d 788 (N.Y. App. Div. 1981)
• Decision Date: 09 July 1981
• Parties: PEOPLE of the State of New York, Respondent, v. J. L. IVEY, Jr., Appellant.

Page 452

443 N.Y.S.2d 452

83 A.D.2d 788

PEOPLE of the State of New York, Respondent, v. J. L. IVEY, Jr., Appellant.

Supreme Court, Appellate Division Fourth Department.

July 9, 1981.

Nathaniel A. Barrell, Buffalo by Joseph Mistrett, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo by Joseph Matteliano, Buffalo, for respondent.

Before SIMONS, J.P., and HANCOCK, CALLAHAN, DENMAN, and SCHNEPP, JJ.

MEMORANDUM:

Defendant was convicted, after a jury trial, of three counts of murder in the second degree and two counts of robbery in the first degree which arose from an armed robbery during which a gasoline station attendant, 25 year-old Alan Sturman, was shot to death. The defendant claimed misidentification and called four alibi witnesses who testified that they were with him at the time the crime was committed.

Defendant's principal contention on appeal is that he is entitled to a new trial because of prosecutorial misconduct. We agree. The record is replete with numerous and repeated acts of improper and prejudicial conduct by the prosecution which deprived defendant of a fair trial (People v. Alicea, 37 N.Y.2d 601, 376 N.Y.S.2d 119, 388 N.E.2d 625; People v. Bussey, 62 A.D.2d 200, 403 N.Y.S.2d 739; People v. Balsano, 51 A.D.2d 130, 380 N.Y.S.2d 129; see Code of Professional Responsibility, EC 7-13, McKinney's Cons. Laws of N.Y., Judiciary Law, p. 474). It is unnecessary to itemize all the incidents but we mention briefly the following: the prosecutor made repeated attempts to offer into evidence composite sketches in direct contravention of the trial court's rulings and over the objections of defense counsel. Composite sketches and testimony regarding such sketches is not admissible on the People's direct case (People v. Griffin, 29 N.Y.2d 91, 93, 323 N.Y.S.2d 964, 272 N.E.2d 477; People v. Forest, 50 A.D.2d 260, 262, 377 N.Y.S.2d 492). While a composite may be introduced to rehabilitate a witness who has been accused of recent fabrication, it may not be used simply to refute evidence which weakens the reliability, of an identification (People v. Davis, 44 N.Y.2d 269, 277-278, 405 N.Y.S.2d 428, 376 N.E.2d 901; People v. Falterman, 74 A.D.2d 584, 424 N.Y.S.2d 481; People v. Forest, supra, 50 A.D.2d 260 p. 263, 377 N.Y.S.2d 492). It was highly improper then for the prosecutor to comment to the jury and insinuate that the court's ruling unfairly precluded him from showing such composites to them. Furthermore, we condemn the prosecutor's inflammatory and prejudical opening statement and summation designed to scare the jury with warnings that any mistake on his part would mean that the "murderer goes free." Similarly to be condemned are the prosecutor's attempts in his summation to inject sympathy for the victim. (See People v. Range, 49 A.D.2d 832, 833, 373 N.Y.S.2d 573; People v. Clemons, 48 A.D.2d 802, 369 N.Y.S.2d 445). Neither can we condone the prosecutor's disparagement of defendant's alibi witnesses by referring to their testimony as "lies," "garbage" and advising the jury that "We should wash that chair after she leaves." Portraying alibi witnesses as bad citizens for their failure to cooperate with the District Attorney is improper (People v. Hamlin, 58 A.D.2d 631, 395 N.Y.S.2d 679). Lastly, the prosecutor clearly implied to the jury in his summation that he knew some things about the case he wished that they knew and stated: "In my opening statement to you, I...