People v. Owens

• Decision Date: 25 July 1977
• Citation: 58 A.D.2d 898,396 N.Y.S.2d 893
• Parties: The PEOPLE, etc., Respondent, v. George OWENS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 893

396 N.Y.S.2d 893

58 A.D.2d 898

The PEOPLE, etc., Respondent, v. George OWENS, Appellant.

Supreme Court, Appellate Division, Second Department.

July 25, 1977.

William E. Hellerstein and William J. Gallagher, New York City (Bertrand J. Kahn, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Eugene H. Scher, Brooklyn, of counsel), for respondent.

Before LATHAM, J. P., and SHAPIRO, HAWKINS and SUOZZI, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 7, 1974, convicting him of robbery in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by (1) reversing the conviction of grand larceny in the third degree and the sentence imposed thereon, and the said count is dismissed, and (2) vacating the sentence imposed upon the robbery conviction. As so modified, judgment affirmed and case remanded to the Criminal Term for further proceedings with regard to sentence in accordance herewith.

On this appeal the defendant raises four arguments: (1) that it was reversible error for his former defense counsel to testify at his Wade hearing as to the fairness of a lineup procedure; (2) that his trial was irreparably prejudiced by the prosecutor's summation; (3) that his grand larceny conviction must be reversed as a matter of law; and (4) that the sentence imposed was unauthorized and illegal.

At the Wade hearing held prior to the trial, the People were permitted to call as a witness, over defense counsel's objections, defendant's former attorney, who had been present at the lineup conducted shortly after the crime had been committed. He testified as to how the lineup had been arranged and his role therein. At the lineup, the complainant identified the defendant as her assailant. We previously indicated our disapproval of such practice in People v. Blue (37 A.D.2d 581, 385 N.Y.S.2d 693), and stress the undesirability of its continued use. In this instance, however, it did not constitute reversible error since the fairness of the lineup procedure was demonstrated by other proper and convincing evidence.

The defendant also claims that certain statements made by the prosecutor during his summation were so prejudicial as to deny him a fair trial. The comments were not so disparaging of defense counsel as to constitute grounds for reversal (see People v. Kane, App.Div., 393 N.Y.S.2d 439 (2d Dept., dec. Apr. 11, 1977)). They were not such "verbal crudities and rantings" as would have both inflamed the jury and degraded the People and, hence, are not of the type readily to be condemned by reversal (cf. People v. Brosnan, 32 N.Y.2d 254,...