People v. Williams

• Decision Date: 26 December 1972
• Citation: 40 A.D.2d 1023,338 N.Y.S.2d 980
• Parties: The PEOPLE, etc., Respondent, v. Walter WILLIAMS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 980

338 N.Y.S.2d 980

40 A.D.2d 1023

The PEOPLE, etc., Respondent, v. Walter WILLIAMS, Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 26, 1972.

Before SHAPIRO, Acting P.J., and GULOTTA, CHRIST, BRENNAN and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 5, 1971, convicting him of attempted assault in the first degree and possession of a dangerous weapon as a felony, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered for the crimes of reckless endangerment in the first degree and possession of a dangerous weapon in the first degree as a felony, under the first and second counts of the indictment, respectively.

Defendant's automobile was stopped by three plainclothes detectives in the early hours of the morning on December 13, 1970. Shots were fired and defendant sustained three gunshot wounds in the head. He underwent surgery and survived. On his recovery, defendant was indicted for attempted murder and possession of a dangerous weapon (and for a third crime not presently relevant). The three detectives all testified at the trial that they stopped defendant to check out his automobile license and registration papers. As they approached, defendant fired shots at them and the detectives returned the fire, hitting him. Defendant took the stand and denied he shot at the detectives, denied that he had a revolver in his possession and testified that he was reaching in his glove compartment for his car registration papers, following a request for them by one of the detectives, when he was shot in the head.

During the prosecutor's summation, defendant was characterized as a 'hired killer', although the record is completely barren of any evidence to support such characterization. When defense counsel objected, the prosecutor asserted, 'That is a fact.' A defense motion for a mistrial was denied and the Trial Justice ruled that it was up to the jury to determine what inference they would draw.

This, in our opinion, was error. We feel that the prosecutor, as a result of the aforementioned remarks, improperly supported his case by 'his own veracity and official position' (People v. Jackson, 7 N.Y.2d 142, 144, 196 N.Y.S.2d 79, 80, 164 N.E.2d 381, 382; People v. Lovello, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483). In view of defendant's vigorous assertion at the trial that he did not have a weapon in his possession at the time his car was stopped, we cannot say that the prosecutor's remarks were harmless (see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Jackson, Supra). Furthermore, the Trial Justice, by his ruling, permitted the jury to draw the inferences that defendant was a 'hired killer', who, according to the unsupported statements by the prosecutor in summation, had decided, as a favor to Miss Mapp, to kill two of the detectives who had stopped defendant's car, because they had been harassing Miss Mapp. In the absence of any basis in the record from which such inferences could be drawn, the trial court's ruling was tantamount to permitting the jury to engage in sheer speculation, all to defendant's prejudice.

In addition to the foregoing, the trial court erred with respect to its charge on the first count of the indictment. It charged attempted murder and the lesser included crimes of attempted manslaughter in the first degree, attempted assault in the first degree under section 120.10 (subd. 3) of the Penal Law (reckless conduct) and attempted assault in the second degree. The jury returned a verdict of guilty of attempted assault in the first degree (reckless conduct) on the first count of the indictment.

There is, however, no such crime. Under section 110.00 of the Penal Law, a person is...