People v. Wallace, 1

• Decision Date: 16 March 1990
• Docket Number: No. 1,1
• Parties: PEOPLE of the State of New York, Respondent, v. Nathaniel WALLACE, Jr., Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 723

552 N.Y.S.2d 723

159 A.D.2d 1022

PEOPLE of the State of New York, Respondent, v. Nathaniel WALLACE, Jr., Appellant. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

March 16, 1990.

Howard Broder, Rochester, for appellant.

Melvin Bressler, Sp. Prosecutor, Rochester, for respondent.

Before DILLON, P.J., and DOERR, LAWTON, DAVIS and LOWERY, JJ.

MEMORANDUM:

The defendant's contention that he was denied a fair trial as a result of the prosecutor's improper inquiry into a defense witness's religious beliefs is meritless. Although we conclude that such inquiry should not be countenanced, in the instant case the error was harmless in view of the overwhelming proof of defendant's guilt and the unlikelihood that a different result would have been reached but for the error (see, People v. Wood, 66 N.Y.2d 374, 379-380, 497 N.Y.S.2d 340, 488 N.E.2d 86; People v. Crimmins, 36 N.Y.2d 230, 241- 242, 367 N.Y.S.2d 213, 326 N.E.2d 787). Also meritless is the defendant's contention that the court's instruction on circumstantial evidence denied him a fair trial by implying that the People's burden of proof was less than beyond a reasonable doubt. Notwithstanding the court's failure to incorporate the exclusion concept in its charge (see, People v. Ford, 66 N.Y.2d 428, 442, 497 N.Y.S.2d 637, 488 N.E.2d 458) and the reference that the circumstantial evidence be "clear and convincing", we find this to be harmless error in view of the overwhelming proof of the defendant's guilt (see, People v. Borazzo, 137 A.D.2d 96, 528 N.Y.S.2d 99, lv. denied, 72 N.Y.2d 916, 532 N.Y.S.2d 850, 529 N.E.2d 180). Moreover, we find that the court's charge, when considered as a whole, conveyed the proper standard of proof to the jury (see, People v. Canty, 60 N.Y.2d 830, 469 N.Y.S.2d 693, 457 N.E.2d 800; People v. Blackshear, 112 A.D.2d 1044, 493 N.Y.S.2d 32, lv. denied, 66 N.Y.2d 917, 498 N.Y.S.2d 1031, 489 N.E.2d 776). Further we note that since there was direct evidence of a full confession made by the defendant to a fellow inmate, the circumstantial evidence charge need not have been given at all (People v. Sanchez, 61 N.Y.2d 1022, 475 N.Y.S.2d 376, 463 N.E.2d 1228 lv. denied 74 N.Y.2d 818, 546 N.Y.S.2d 576, 545 N.E.2d 890; People v. Barnes, 50 N.Y.2d 375, 380, 429 N.Y.S.2d 178, 406 N.E.2d 1071; People v. Bretagna, 298 N.Y. 323, 83 N.E.2d 537). There is no merit to defendant's contention that he was denied a fair trial by the prosecutor's repeated effort to force the defendant to characterize the People's witnesses as liars and by his reference in summation that the trial was a "search for the truth". We do not find the prosecutor's remark made in summation to be prejudicial, since it did not reflect directly on the burden of proof (see, e.g., People v. Reyes, 119 A.D.2d 596, 500 N.Y.S.2d 765, lv. denied 68 N.Y.2d 772, 506 N.Y.S.2d 1057, 498 N.E.2d 159). Although the prosecutor's attempt to force the defendant to characterize the People's witnesses as liars was error, it is harmless in view of the overwhelming proof of defendant's guilt and the ameliorative effect of the length of the trial (see, People v. Galloway, 54 N.Y.2d 396, 400, 446 N.Y.S.2d 9, 430 N.E.2d 885). In addition, there is no merit to defendant's contention that he was denied a fair trial by reason of the prosecutor's improper remarks on his violent propensities. We note that no objection was made and, considering the overwhelming evidence of defendant's guilt, we...