People v. Spence
| Decision Date | 21 February 2012 |
| Citation | 938 N.Y.S.2d 622,2012 N.Y. Slip Op. 01489,92 A.D.3d 905 |
| Parties | The PEOPLE, etc., respondent, v. Michael SPENCE, appellant. |
| Court | New York Supreme Court — Appellate Division |
2012 N.Y. Slip Op. 01489
92 A.D.3d 905
938 N.Y.S.2d 622
The PEOPLE, etc., respondent,
v.
Michael SPENCE, appellant.
Supreme Court, Appellate Division, Second Department, New York.
Feb. 21, 2012.
[938 N.Y.S.2d 623]
Joseph R. Faraguna, Sag Harbor, N.Y., for appellant.
Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Donald Berk of counsel), for respondent.
MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERSN and PLUMMER E. LOTT, JJ.[92 A.D.3d 905] Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered September 20, 2010, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial (Grella, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Nassau County, for a new trial.
Contrary to the defendant's contention, the pretrial lineup identification was not unduly suggestive ( see People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608, cert. denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70). The photographs taken of the lineup reflect that the slight differences in skin tone between the defendant and the fillers were not so apparent as to orient the viewer toward the defendant as the perpetrator of the crimes charged ( id.; see People v. Alonge, 74 A.D.3d 1354, 903 N.Y.S.2d 262). “Skin tone is only one of the factors to be considered in deciding ‘reasonable similarity,’ and differences in skin tone alone will not render a lineup unduly suggestive”
[938 N.Y.S.2d 624]
( People v. Villacreses, 12 A.D.3d 624, 625, 785 N.Y.S.2d 103, quoting People v. Miller, 199 A.D.2d 422, 423, 605 N.Y.S.2d 342; see People v. Pointer, 253 A.D.2d 500, 677 N.Y.S.2d 582). Additionally, we do not find that the presence of a small tattoo on the side of the defendant's face rendered the lineup unduly suggestive ( see People v. Chipp, 75 N.Y.2d at 336, 553 N.Y.S.2d 72, 552 N.E.2d 608; cf. People v. Jiminez, 22 A.D.3d 423, 805 N.Y.S.2d 2).
However, we find that improper remarks by the prosecutor during summation deprived the defendant of a fair trial. The prosecutor improperly vouched for a witness and implied that the...
To continue reading
Request your trial
-
People v. Harris
...protection, the jury was improperly invited to speculate as to the source of this threat to their safety ( see People v. Spence, 92 A.D.3d 905, 905–906, 938 N.Y.S.2d 622;People v. Leon, 121 A.D.2d at 9–10, 509 N.Y.S.2d 1). In sum, the need to explain why the complainants were placed in the ......
-
People v. Quintana
...v. Smart, 142 A.D.3d 513, 514, 36 N.Y.S.3d 197 [2016], affd 29 N.Y.3d 1098, 58 N.Y.S.3d 896, 81 N.E.3d 379 [2017] ; People v. Spence, 92 A.D.3d 905, 905, 938 N.Y.S.2d 622 [2012] ). Indeed, there is no requirement that the physical characteristics, including skin tone, of the six males depic......
-
People v. Forbes
...however, counsel may not become a witness in the case or vouch for the credibility of the witnesses who testified ( see People v. Spence, 92 A.D.3d 905, 905, 938 N.Y.S.2d 622 [2012]; [975 N.Y.S.2d 494]People v. Russell, 307 A.D.2d 385, 386, 761 N.Y.S.2d 400 [2003] ), nor may he or she comme......
-
People v. Griffin
...N.E.2d 676 ; Moye, 12 N.Y.3d at 744, 879 N.Y.S.2d 354, 907 N.E.2d 267 ; Forbes, 111 A.D.3d at 1158, 975 N.Y.S.2d 490 ; People v. Spence, 92 A.D.3d 905, 905–906, 938 N.Y.S.2d 622 ). In addressing inconsistencies between the complainant's testimony and his earlier statement to the police, the......
-
Summation
...is guilty of other crimes not in issue at the trial. People v. Ashwal , 39 N.Y.2d 105, 347 N.E.2d 564 (1976); People v. Spence , 92 A.D.3d 905, 938 N.Y.S.2d 622 (2d Dept. 2012). he relative wealth or poverty of the parties. Nicholas v. Island Industrial Park of Patchogue, Inc ., 46 A.D.2d......
-
Summation
...is guilty of other crimes not in issue at the trial. People v. Ashwal , 39 N.Y.2d 105, 347 N.E.2d 564 (1976); People v. Spence , 92 A.D.3d 905, 938 N.Y.S.2d 622 (2d Dept. 2012). he relative wealth or poverty of the parties. Nicholas v. Island Industrial Park of Patchogue, Inc ., 46 A.D.2d......
-
Summation
...is guilty of other crimes not in issue at the trial. People v. Ashwal , 39 N.Y.2d 105, 347 N.E.2d 564 (1976); People v. Spence , 92 A.D.3d 905, 938 N.Y.S.2d 622 (2d Dept. 2012). SUMMATION 19-5 SUMMATION §19:40 he relative wealth or poverty of the parties. Nicholas v. Island Industrial Par......
-
Summation
...is guilty of other crimes not in issue at the trial. People v. Ashwal , 39 N.Y.2d 105, 347 N.E.2d 564 (1976); People v. Spence , 92 A.D.3d 905, 938 N.Y.S.2d 622 (2d Dept. 2012). he relative wealth or poverty of the parties. Nicholas v. Island Industrial Park of Patchogue, Inc ., 46 A.D.2d......