People v. Robinson

• Decision Date: 15 March 1993
• Citation: 594 N.Y.S.2d 801,191 A.D.2d 595
• Parties: The PEOPLE, etc., Respondent, v. Phillip ROBINSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 801

594 N.Y.S.2d 801

191 A.D.2d 595

The PEOPLE, etc., Respondent, v.Phillip ROBINSON, Appellant.

Supreme Court, Appellate Division Second Department.

March 15, 1993.

Philip L. Weinstein, New York City(Mary C. Rothwell, of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Gary Fidel and Elizabeth Fox, of counsel, Michael Zen, on the brief), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, O'BRIEN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County(Appelman, J.), rendered April 6, 1990, convicting him of assault in the first degree (two counts) and menacing, upon a jury verdict, and imposing sentence.

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.The facts have been considered and are determined to have been established.

Viewing the evidence adduced at the trial in the light most favorable to the People(see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.The case was compromised by significant trial errors, the majority of which have not been preserved for appellate review.However, we feel compelled, under the circumstances of this case, to address these errors in the exercise of our interest of justice jurisdiction (see, 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).We reverse and order a new trial.

Beginning with the opening statement, the prosecutor engaged in a series of improper remarks and tactics that continued through the trial and summation.A number of the court's efforts at curative or limiting instructions were either inadequate or were overridden by the prosecutor's continued comments and persistence.

The court acted properly in admitting evidence concerning the defendant's prior physical abuse of the complainant as relevant on the issue of the defendant's intent with respect to the crimes charged (see, People v. Carver, 183 A.D.2d 907, 584 N.Y.S.2d 142;People v. Wright, 167 A.D.2d 959, 562 N.Y.S.2d 301;People v. Willsey, 148 A.D.2d 764, 538 N.Y.S.2d 342;People v. Castrechino, 134 A.D.2d 877, 521 N.Y.S.2d 960), especially in view of the defendant's position at the trial that he had struck the complainant by accident (see, People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735;People v. DeLeon, 135 A.D.2d 555, 521 N.Y.S.2d 777).However, the trial court's failure to deliver any limiting instructions with regard to this evidence indicates that the jury may have considered it as proof of the defendant's general criminal disposition to violence (see, People v. Guzman, 146 A.D.2d 799, 537 N.Y.S.2d 277;People v. Bolling, 120 A.D.2d 601, 502 N.Y.S.2d 77).The failure was compounded by the prosecutor's summation argument that the main probative value of the evidence in question was that it constituted proof of the defendant's general violent disposition.

While questioning the arresting officer, the prosecutor deliberately elicited testimony concerning the defendant's postarrest silence, and despite the court's ruling, made a point of stressing this testimony in summation.The tactic was clearly improper.We note that the defendant's postarrest silence had been the subject of a curative instruction in response to the prosecutor's comments during his opening statement (see, People v. Conyers, 49 N.Y.2d 174, 177, 424 N.Y.S.2d 402, 400 N.E.2d 342;People v. Von Werne, 41 N.Y.2d 584, 587-588, 394 N.Y.S.2d 183, 362 N.E.2d 982;People v. De George, 73 N.Y.2d 614, 543 N.Y.S.2d 11, 541 N.E.2d 11).Under the facts of this case, it cannot be deemed harmless (see, People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

In answer to the prosecutor's question, the People's medical expert was permitted to testify that in her opinion, the injury to the complainant's eye could not possibly have resulted from, in the prosecutor's words, "an accidental poke in the eye".This characterization, however, distorted the issue.The defendant did not claim that he merely poked the complainant by accident.He stated that he struck her "pretty hard," although unintentionally.Since the degree of injury inflicted by the defendant's action had no relation to the motive behind it, the question, as posed, was improper (see, People v. Robinson, 174 A.D.2d 998, 572 N.Y.S.2d 159).Whether the defendant...