People v. Roopchand

• Decision Date: 19 February 1985
• Parties: The PEOPLE, etc., Respondent, v. Wilfred ROOPCHAND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 332

485 N.Y.S.2d 332

107 A.D.2d 35

The PEOPLE, etc., Respondent, v. Wilfred ROOPCHAND, Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 19, 1985.

William E. Hellerstein, New York City (Robin Nichinsky, Ozone Park, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Merri Turk Lasky, Kew Gardens, of counsel), for respondent.

Before TITONE, J.P., and GIBBONS, BRACKEN, BROWN and NIEHOFF, JJ.

PER CURIAM.

The core question dividing us is whether the trial prosecutor's remarks in summation, which were patently improper and which we unequivocally condemn, entitle the defendant to a new trial. A review of the record convinces the majority of us that reversal is not warranted.

Reversal for prosecutorial misconduct " 'is properly shunned when the misconduct has not substantially prejudiced a defendant's trial. Reversal is an ill-suited remedy for prosecutorial misconduct; it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted' " (People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885, quoting United States v. Modica, 2nd Cir., 663 F.2d 1173, 1184, cert. den. 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284; see, also, People v. Keppler, 92 A.D.2d 1032, 461 N.Y.S.2d 513). Thus, the appropriate question is whether the misconduct deprived the defendant of a fair trial (see, e.g., People v. Hopkins, 58 N.Y.2d 1079, 1083, 462 N.Y.S.2d 639, 449 N.E.2d 419; People v. Lowen, 100 A.D.2d 518, 520, 473 N.Y.S.2d 22; People v. Tayeh, 96 A.D.2d 1045, 1047, 466 N.Y.S.2d 458; cf. People v. Cruz, 98 A.D.2d 726, 469 N.Y.S.2d 138; People v. Stewart, 92 A.D.2d 226, 459 N.Y.S.2d 853). "The rule is that an improper summation, at least when the objectionable parts consist largely of abusive and intemporate language as here, should be assessed for its prejudicial effect, and it requires greater impropriety to produce that effect in a stronger case" (People v. Brosnan, 32 N.Y.2d 254, 262, 344 N.Y.S.2d 900, 298 N.E.2d 78; see, also, United States v. Johns, 11th Cir., 734 F.2d 657, 661-662; United States v. Weatherless, 4th Cir., 734 F.2d 179, 181-182, cert. den. 469 U.S. 1088, 105 S.Ct. 595, 83 L.Ed.2d 704).

As in Brosnan, "this case, it is at most only arguable that the prosecutor's misconduct could have produced a greater adverse effect on the jury than did the bizarre facts of the crime, and the overwhelming evidence of culpability" (People v. Brosnan, supra, 32 N.Y.2d p. 262, 344 N.Y.S.2d 900, 298 N.E.2d 78). The victim positively identified the defendant as her assailant at the time of his arrest, some 25 to 30 minutes subsequent to the crime. At that time, defendant's pants were ripped and his legs were bleeding, a condition consistent with having been dragged in circles by a car, as the victim testified had occurred. He almost perfectly matched the description given to the police moments after the incident. The alibi testimony was totally unpersuasive and, indeed, based upon the alibi witness's time approximation it appears that he saw the defendant after the crime had been committed. Hence, the prosecutor's unwarranted comments do not taint the conviction (People v. Galloway, 54 N.Y.2d 396, 401, 446 N.Y.S.2d 9, 430 N.E.2d 885, supra; People v. Harris, 107 A.D.2d 761, 484 N.Y.S.2d 127 accord United States v. Johns, supra; United States v. Weatherless, supra; United States v. Bosby, 11th Cir., 675 F.2d 1174, 1185; United States v. Karas, 4th Cir., 624 F.2d 500, 506, cert. den. 449 U.S. 1078, 101 S.Ct. 857, 66 L.Ed.2d 800).

When prosecutorial misconduct has occurred, we may employ sanctions other than reversal to insure nonrepetition. We can, for example, condemn the prosecutor publicly, direct the commencement of disciplinary proceedings and preclude the prosecutor from making court appearances for a specified period of time (cf. United States v. Modica, 663 F.2d 1173, supra ). Such an approach is far more appropriate when a defendant has been fairly convicted, as the direction for a new trial operates to punish the victim and the witnesses through additional inconvenience and expense (cf. United States v. Hasting, 461 U.S. 499, 506-507, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96; Morris v. Slappy, 461 U.S. 1, 14-15, 103 S.Ct. 1610, 1617-1618, 75 L.Ed.2d 610).

At this juncture, we are not inclined to impose any direct sanction against the offending prosecutor other than to warn him that any future infractions may lead to disciplinary action and that we expect the District Attorney of Queens County to issue an appropriate internal admonition. We remind District Attorneys that they have a continuing obligation to clearly and firmly instruct their trial assistants to refrain from using improper tactics and, through periodic observation, to assure that these instructions are adhered to. Trial judges who experience difficulties with assistants appearing before them should have no hesitancy in bringing the matter to the attention of the District Attorney.

Defendant's complaint that the People introduced into evidence a statement he made without giving the notice specified by CPL 710.30 also does not constitute reversible error. First, it is not at all clear that such notice was required. It appears that the People did not intend to elicit the statement and it was volunteered by the police officer (see People v. Webb, 97 A.D.2d 779, 468 N.Y.S.2d 411). Moreover, the statement was made in a noncustodial, noncoerced environment and was plainly voluntary (People v. Travison, 46 N.Y.2d 758, 413 N.Y.S.2d 648, 386 N.E.2d 256, affg. 59 A.D.2d 404, 407, 400 N.Y.S.2d 188, cert. den. 441 U.S. 949, 99 S.Ct. 2174, 60 L.Ed.2d 1053; People v. Pray, 99 A.D.2d 915, 916, 473 N.Y.S.2d 267; People v. Balschweit, 91 A.D.2d 1127, 458 N.Y.S.2d 730; cf. People v. Burnett, 99 A.D.2d 786, 472 N.Y.S.2d 37). In any event, the statement added little to the People's case and its admission, if error, was harmless (People v. Johnson, 54 A.D.2d 586, 387 N.Y.S.2d 161; People v. Edwards, 51 A.D.2d 807, 380 N.Y.S.2d 265).

Nor did the court marshal the evidence unfairly (see People v. Culhane, 45 N.Y.2d 757, 408 N.Y.S.2d 489, 380 N.E.2d 315, cert. den. 439 U.S. 1047, 99 S.Ct. 723, 58 L.Ed.2d 706; People v. Little, 98 A.D.2d 752, 469 N.Y.S.2d 462, affd. 62 N.Y.2d 1020, 479 N.Y.S.2d 518, 468 N.E.2d 700; People v. Harris, 69 A.D.2d 843, 415 N.Y.S.2d 72). The court gave appropriate instructions and accurately summarized the testimony of all three witnesses.

Finally, we would note that even if there were merit in defendant's arguments, we would not dismiss the indictment even though we are told that he has served his sentence. Defendant's claims all relate to asserted trial errors and in such circumstances the Criminal Procedure Law specifies that the appropriate corrective action is the direction for a new trial (CPL 470.20, subd. 1; People v. Allen, 39 N.Y.2d 916, 386 N.Y.S.2d 404, 352 N.E.2d 591; but cf. People v. Sutton, 98 A.D.2d 785, 469 N.Y.S.2d 804; People v. Fondal, 64 A.D.2d 638, 406 N.Y.S.2d 867).

While dismissal may be warranted where the charges "involved relatively minor crimes" (People v. Burwell, 53 N.Y.2d 849, 851, 440 N.Y.S.2d 177, 422 N.E.2d 822; cf. Matter of Ernesto M., 65 A.D.2d 800, 410 N.Y.S.2d 306), in this case the conviction is for a felony "and for penological purposes it is relevant whether defendant committed the crime" (People v. Allen, supra, 39 N.Y.2d p. 918, 386 N.Y.S.2d 404, 352 N.E.2d 591). Should defendant ever commit another felony, it is important that the court be able to impose an enhanced sentence.

Accordingly, the judgment should be affirmed.

Judgment of the Supreme Court, Queens County, rendered August 12, 1980, affirmed.

TITONE, J.P., and BRACKEN and NIEHOFF, JJ., concur.

GIBBONS, J., dissents and votes to reverse the judgment appealed from and to order a new trial, in an opinion, in which BROWN, J., concurs.

GIBBONS, Justice (dissenting).

On January 3, 1980, at approximately 12:30 A.M., the complainant herein, Janice Ghignon, was stopped at a red light in Queens County when she was approached by a man who told her that her rear license plate was missing. Initially unmoved by this information, Mrs. Ghignon apparently changed her mind and got out of her car, leaving the engine running. At this point, the man stepped forward and told her that he was going to take her car. The complainant resisted, and when the man pushed her, she pushed back, knocking the man off balance. Mrs. Ghignon then got back into the car, locked the door and started to close the electric window. Her assailant then placed a hand in his pocket claiming to have a gun. He produced no gun, however, and as the complainant attempted to drive away, he put his hand into the window opening and apparently got it caught. As the complainant drove away, she saw her assailant hanging onto the side of the car, whereupon she drove in circles until he fell off. Moments later, she returned to the scene of the crime and gave the police a description of the perpetrator, which was apparently broadcast to other police units. A suspect was thereafter apprehended several blocks away, and when she arrived at the scene, Mrs. Ghignon identified the defendant as her assailant. Insofar as is here pertinent, it is undisputed that the defendant's pants were ripped at the knees when he was apprehended, and that he was bleeding.

Testimony to this effect was introduced at the trial, as was a statement by one of the arresting officers to the effect that when he confronted the defendant and asked him about the injury to his knees, the latter responded "that he had been in a fight or an argument with somebody a couple of months ago, which gave no basis for the fact that his knees were still bleeding". No notice of the existence of this incriminating statement had been given to the defendant pursuant to CPL 710.30 (subd. 1), and upon its receipt into...