People v. Jackson

Decision Date12 September 1988
Citation143 A.D.2d 363,532 N.Y.S.2d 303
PartiesThe PEOPLE, etc., Respondent, v. Dennis JACKSON, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Daniel E. Rosen of counsel, Gino Renda on the brief), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Andrew J. Frisch and Theresa S. Leopold, of counsel), for respondent.

Before BROWN, J.P., and LAWRENCE, WEINSTEIN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pesce, J.), rendered October 14, 1986, convicting him of burglary in the third degree, criminal possession of stolen property in the third degree and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

While many of the errors complained of were not objected to at the trial, we nevertheless feel compelled, under the circumstances of this case, to reach them in the interest of justice and to reverse ( People v. Ortiz, 125 A.D.2d 502, 509 N.Y.S.2d 418; People v. Hamilton, 121 A.D.2d 176, 502 N.Y.S.2d 747).

The prosecutor attempted to denigrate the defendant's testimony by stating that the defendant's version of the facts was a fabrication concocted after hearing the People's witnesses; by stating on some 10 separate occasions that defense counsel's summation was intended to cloud the issues; by contending that the "whole cloud which was painted is a joke" which he (the prosecutor) was going to try to clean; and by claiming that defense counsel had tried to draw attention away from the real issues by his "talking softly", "friendly attitude", and "nice mannerism", just "like in the movies". We conclude that under the circumstances, the defendant was unduly prejudiced by the prosecutor's action. It was improper for the prosecutor to attack a defendant's testimony on the grounds that he had fabricated his case after hearing the People's witnesses, ( see, People v. Bolden, 82 A.D.2d 757, 440 N.Y.S.2d 202); it was improper for the prosecutor to label the defense argument as a "cloud" and cast himself as the guardian of truth ("Before you note it, it's so cloudy I'm going to try to clean it"), ( see, People v. Torres, 111 A.D.2d 885, 490 N.Y.S.2d 793); and it was improper for the prosecutor to denigrate his adversary's personal attributes ( see, People v. Butler, 67 A.D.2d 950, 413 N.Y.S.2d 219).

Moreover, the court's failure to charge the jury on the limited purpose for which prior convictions could be considered is error ( see, People v. Williams, 112 A.D.2d 177, 490 N.Y.S.2d 856; People v. Moorer, 77 A.D.2d 575, 429 N.Y.S.2d 913).

With reference to the People's contention that taken individually, these are harmless errors, we note that sufficient harmless errors must ultimately be deemed harmful ( People v. Rosa, 108 A.D.2d 531, 489 N.Y.S.2d 722).

BROWN, J.P., and LAWRENCE and BALLETTA, JJ., concur.

WEINSTEIN, J., dissents and votes to affirm the judgment appealed from with the following memorandum:

I disagree with my colleagues' conclusion that combined improprieties surrounding the prosecutor's summation and the trial court's charge deprived the defendant of a fair trial and warrant a reversal of the judgment appealed from in the interest of justice. In addition to the fact that most of the alleged errors cited by the defendant have not been preserved for appellate review ( see, People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584, 407 N.E.2d 430; CPL 470.05[2] ), there is, in my view, no significant probability that the jury would have acquitted the defendant had those errors not occurred ( see, People v. Williams, 112 A.D.2d 1017, 493 N.Y.S.2d 18).

Among the specific objections raised by the defendant were the prosecutor's repeated allusions to defense counsel's clouding of the issues and to his reference to the defendant's version of events in the following fashion: "The whole cloud which was painted is a joke". Unlike the situation in People v. Brown, 111 A.D.2d 248, 250, 489 N.Y.S.2d 92, where the prosecutor characterized the defense counsel's arguments as a cloud of black ink used to confuse the issues, and made the following statement: "I am going to lead you through that cloud of confusion to the truth", the prosecutor in the instant case used "clouds" as a metaphor by which he challenged the credibility of the defendant's testimony and by which he categorized defense counsel's attacks on the People's evidence. The prosecutor did not, by means of his references to the cloud metaphor, cast aspersions on defense counsel's motives or claim to be the sole guardian or beacon of truth. Nor did he so demean the defense case by characterizing it as "razzle dazzle", "the old three-ring circus", a "con" or a "fairy tale", which characterizations have been condemned by this court on prior occasions ( see, People v. Ciervo, 123 A.D.2d 393, 396, 506 N.Y.S.2d 462; People v. Simms, 130 A.D.2d 525, 526, 515 N.Y.S.2d 105). The subject references were merely illustrative of the prosecutor's legitimate argument that the evidence of guilt was clear and that defense counsel's arguments to the contrary merely clouded that clarity. They by no means rendered the trial inherently unfair.

In response to defense counsel's assertions that the arresting officer tailored his testimony and exaggerated so as to make each and every individual who was stopped inside or outside the store appear culpable and that his testimony was an effort on his part to...

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