People v. Ortiz

Decision Date15 December 1986
Citation125 A.D.2d 502,509 N.Y.S.2d 418
PartiesThe PEOPLE, etc., Respondent, v. Octavio ORTIZ, Appellant.
CourtNew York Supreme Court — Appellate Division

Philip L. Weinstein, New York City (Roger D. Olson, of counsel), for appellant, and Octavia Ortiz, appellant pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Sarah G. Noll and Miriam R. Best, of counsel), for respondent.

Before NIEHOFF, J.P., and RUBIN, EIBER and KOOPER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant (1) from a judgment of the Supreme Court, Kings County (Lentol, J.), rendered February 9, 1981, convicting him of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence, and (2), by permission, from an order of the same court (Hutcherson, J.), dated January 10, 1985, which denied his motion pursuant to CPL 440.10 to vacate the judgment of conviction.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered; and it is further,

ORDERED that the appeal from the order is dismissed as academic in light of the determination on the appeal from the judgment.

Reversal of the judgment of conviction is required because of the prosecutor's numerous prejudicial comments during his summation which deprived the defendant of a fair trial. The persistent theme characterizing the prosecutor's summation was that the defendant and his witnesses were "liars" and that the People's witnesses, whose credibility the prosecutor repeatedly vouched for, were entirely truthful and had no motive to lie. In introducing his remarks, the prosecutor first informed the jury that, "I think the testimony of all of his witnesses clearly indicate that they were lying". Thereafter, the prosecutor twice told the jury that defendant had "lied to * * * unemployment", had "lied" to a Detective Gonzalez and had lied to an Assistant District Attorney. Immediately following this remark, the prosecutor concluded that the "man is a liar and he is a good liar. But he is also a murderer". Finally, the prosecutor returned to this theme, when, in concluding his remarks, he bluntly commented that if the defendant "is lying he should be found guilty of murder". This court has repeatedly disapproved of a prosecutor making such statements (see, People v. Ricchiuti, 93 A.D.2d 842, 845, 461 N.Y.S.2d 67; People v. Whitehurst, 87 A.D.2d 896, 449 N.Y.S.2d 520; People v. Alston, 77 A.D.2d 906, 431 N.Y.S.2d 82; see also, People v. Shanis, 36 N.Y.2d 697, 699, 366 N.Y.S.2d 413, 325 N.E.2d 873; People v. Shaw, 112 A.D.2d 958, 959, 492 N.Y.S.2d 470).

Moreover, the prosecutor improperly injected his own beliefs into his summation by gratuitously suggesting that the defendant's lifestyle and association were...

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  • People v. Mehmood
    • United States
    • New York Supreme Court — Appellate Division
    • December 18, 2013
    ...( see People v. Spann, 82 A.D.3d at 1015, 918 N.Y.S.2d 588; People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741; People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418). The prosecutor also inaccurately stated that the defendant, who had testified on his own behalf, needed “a clarification......
  • People v. Spann
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    • New York Supreme Court — Appellate Division
    • March 15, 2011
    ...physical condition was evidence of consciousness of guilt ( see People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741; People v. Ortiz, 125 A.D.2d 502, 503, 509 N.Y.S.2d 418; People v. Torres, 111 A.D.2d 885, 886-887, 490 N.Y.S.2d 793; cf. People v. Galloway, 54 N.Y.2d 396, 399, 446 N.Y.S.2d......
  • People v. Shi
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    • New York Supreme Court — Appellate Division
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    ...Bailey, 58 N.Y.2d 272, 277, 460 N.Y.S.2d 912, 447 N.E.2d 1273; People v. Blowe, 130 A.D.2d 668, 671, 515 N.Y.S.2d 812; People v. Ortiz, 125 A.D.2d 502, 509 N.Y.S.2d 418). The prosecutor improperly stated, during the course of his opening remarks, that Tarik Greene knew the defendant, and th......
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