People v. Wilson
| Decision Date | 30 January 1978 |
| Citation | 401 N.Y.S.2d 576,60 A.D.2d 920 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE, etc., Respondent, v. James WILSON, Appellant. |
Howard J. Gardner, Jamaica, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Joan L. Craig, Brooklyn, of counsel), for respondent.
Before HOPKINS, J. P., and SHAPIRO, HAWKINS and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 11, 1977, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.
Judgment reversed, on the law, and new trial ordered.
On May 4, 1976, in response to a demand for notice of alibi, the defense served a notice of alibi upon the People indicating that the defendant claimed to have been at his home at the time of the alleged occurrence and intended to rely upon Mrs. Verdelle Washington, his mother, as a witness. At the trial, which commenced on January 18, 1977, the defendant's mother testified that he had been at home until after 1:00 P.M. on April 14, 1976. The alleged burglary occurred at about 11:30 A.M. on that date. In summation, the prosecutor made the following comment:
"One final point about Mrs. Washington's testimony and this is important, I would submit, because it goes right to the question of whether or not Mrs. Washington's story is believable * * * She never told her story to anyone from the District Attorney's office, she never testified in any prior proceeding in this case, she never even told her story to her son's own lawyer until the very eve of this trial".
At a sidebar conference defense counsel objected to the prosecutor's comments, pointed out the date of the service of the notice of alibi, and moved for a mistrial, which motion was denied. Following the conference, the prosecutor continued his summation and stated:
"Isn't it clear, isn't it clear that that alibi was worked out at the last minute as a desperate attempt to fool this very jury."
Defense counsel renewed his objection at the end of the prosecutor's summation. Prior to its charge, the trial court attempted to cure the error as follows:
"Members of the jury, before we proceed there is just one point I wish to indicate to you, that there had been some indication a number of months ago that an alibi would be offered in this case, so with that admonition I will now go into my charge."
Despite the corrective instruction, we are of the opinion that the...
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...trial. That evidence was clearly relevant after the questions pertaining to their failure to go to the police (cf. People v. Wilson, 60 A.D.2d 920, 921, 401 N.Y.S.2d 576). Finally, the court's charge as to the alibi defense was improper. The jury was told that "you must be satisfied as to t......
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