| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
View New York Official Reports version
The PEOPLE, etc., Respondent,
v.
Curtis SCOON and William Morris, Appellants.
Supreme Court, Appellate Division,
Second Department.
May 11, 1987.
Defendants were convicted in the Supreme Court, Queens County, Appelman, J., of second-degree assault, and they appealed. The Supreme Court, Appellate Division, held that cumulative effect of prejudice resulting from trial court's forbidding cross-examination of complainant as to underlying facts of his prior youthful offender adjudication for grand larceny, prosecutor's improper attempt to corroborate complainant's testimony, and prosecutor's statement to jury regarding unsupported inference that defendants had been selling drugs warranted grant of new trial.
Reversed.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[1] KeyCite this headnote
 110 CRIMINAL LAW
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1170.5 Examination of Witnesses
110k1170.5(1) k. Rulings in general.
Formerly 110k11701/2(1)
N.Y.A.D. 2 Dept.,1987.
In prosecution for second-degree assault, in which issue of credibility of complainant's testimony as it related to defendants' testimony was crucial and was closely contested, trial court's forbidding cross-examination of complainant as to underlying facts of his prior youthful offender adjudication for grand larceny constituted prejudicial error; moreover, exclusion of underlying facts of youthful offender grand larceny adjudication, which provided vital information going directly to issue of complainant's dishonesty, was exacerbated by prosecutor's comment during summation that complainant was not a liar and that none of his previous crimes involved dishonesty.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[1] KeyCite this headnote
410 WITNESSES
410IV Credibility and Impeachment
410IV(B) Character and Conduct of Witness
410k348 Cross-Examination for Purpose of Impeachment
410k350 k. Accusation or conviction of crime.
N.Y.A.D. 2 Dept.,1987.
In prosecution for second-degree assault, in which issue of credibility of complainant's testimony as it related to defendants' testimony was crucial and was closely contested, trial court's forbidding cross-examination of complainant as to underlying facts of his prior youthful offender adjudication for grand larceny constituted prejudicial error; moreover, exclusion of underlying facts of youthful offender grand larceny adjudication, which provided vital information going directly to issue of complainant's dishonesty, was exacerbated by prosecutor's comment during summation that complainant was not a liar and that none of his previous crimes involved dishonesty.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[2] KeyCite this headnote
110 CRIMINAL LAW
110XX Trial
110XX(E) Arguments and Conduct of Counsel
110k712 Statements as to Facts, Comments, and Arguments
110k719 Matters Not Sustained by Evidence
110k719(1) k. In general.
N.Y.A.D. 2 Dept.,1987.
In prosecution for second-degree assault, prosecutor's improper and repeated comment on matters not in evidence, including contents of radio transmission calling police to scene of crime and contents of a police report, neither of which had been admitted into evidence and both of which allegedly indicated that gunshots had been fired, constituted improper attempt to corroborate complainant's testimony that he had been pistol-whipped and shot at by defendants, and were highly prejudicial; defendants claimed that they did not have any guns at time of incident, and element of second-degree assault for which defendant's were convicted requires that physical injury be caused by use of deadly weapon or dangerous instrument.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[2] KeyCite this headnote
110 CRIMINAL LAW
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1171 Arguments and Conduct of Counsel
110k1171.1 In General
110k1171.1(2) Statements as to Facts, Comments, and Arguments
110k1171.1(3) k. Particular statements, comments, and arguments.
N.Y.A.D. 2 Dept.,1987.
In prosecution for second-degree assault, prosecutor's improper and repeated comment on matters not in evidence, including contents of radio transmission calling police to scene of crime and contents of a police report, neither of which had been admitted into evidence and both of which allegedly indicated that gunshots had been fired, constituted improper attempt to corroborate complainant's testimony that he had been pistol-whipped and shot at by defendants, and were highly prejudicial; defendants claimed that they did not have any guns at time of incident, and element of second-degree assault for which defendant's were convicted requires that physical injury be caused by use of deadly weapon or dangerous instrument.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[3] KeyCite this headnote
110 CRIMINAL LAW
110XX Trial
110XX(E) Arguments and Conduct of Counsel
110k712 Statements as to Facts, Comments, and Arguments
110k720 Comments on Evidence or Witnesses
110k720(7) Inferences from and Effect of Evidence in Particular Prosecutions
110k720(7.1) k. In general.
Formerly 110k720(7)
N.Y.A.D. 2 Dept.,1987.
In defendant's prosecution for second-degree assault, prosecutor's comment during summation, asking jury to infer that defendants were selling drugs, although no evidence or testimony was presented at trial to support such inference, was highly prejudicial.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
People v. Scoon
[3] KeyCite this headnote
110 CRIMINAL LAW
110XXIV Review
110XXIV(Q) Harmless and Reversible Error
110k1171 Arguments and Conduct of Counsel
110k1171.3 k. Comments on evidence or witnesses.
N.Y.A.D. 2 Dept.,1987.
In defendant's prosecution for second-degree assault, prosecutor's comment during summation, asking jury to infer that defendants were selling drugs, although no evidence or testimony was presented at trial to support such inference, was highly prejudicial.
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306) |
**306
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306, **306) |
Todd Greenberg, Kew Gardens (Spiros A. Tsimbinos, of counsel), for appellant Morris, and David Cohen, Kew Gardens, for appellant Scoon.
John J. Santucci, Dist. Atty., Kew Gardens (Kenneth Appelbaum and Randi Fleishman, of counsel), for respondent.
Before BRACKEN, J.P., and BROWN, RUBIN and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendants from two judgments (one as to each of them) of the Supreme Court, Queens County (Appelman, J.), both rendered June 11, 1986, convicting each of them of assault in the second degree, upon a jury verdict, and imposing sentences.
ORDERED that the judgments are reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
[1] The trial court improperly precluded the defendants from cross-examining the complainant as to the underlying acts of **307
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306, **307) |
his prior youthful offender adjudication for grand larceny. While the trial court has discretion with respect to the permissible scope of cross-examination of a witness on the basis of prior bad acts, where, as in the instant case, the issue of the credibility of the complainant's testimony vis-a-vis the defendant's testimony
| (Cite as: 130 A.D.2d 597, 515 N.Y.S.2d 306, **307) |
was crucial, that issue was closely contested, and where the underlying acts of a grand larceny youthful offender adjudication would provide vital information going directly to the issue of the complainant's dishonesty (and thus *598
| (Cite as: 130 A.D.2d 597, *598, 515 N.Y.S.2d 306, **307) |
to the issue of his credibility at trial), it was prejudicial error to preclude such cross-examination (see, e.g., People v. Jones, 115 A.D.2d 302, 495 N.Y.S.2d 823; People v. Meurer, 86 A.D.2d 636, 446 N.Y.S.2d 341). The improper preclusion of questioning concerning the underlying facts of a youthful offender grand larceny adjudication was exacerbated by the prosecutor in his summation when he commented as to the complaining witness as follows: "Not one of those crimes involved dishonesty * * * he's not a liar".
[2] Moreover, the prosecutor improperly and repeatedly commented on matters not in evidence--namely, the contents of a radio transmission calling the police to the scene of the crime, and a police report, neither of which had been admitted into evidence and both of which allegedly indicated that gunshots had been fired--in an improper attempt to corroborate the complainant's testimony that he had been pistol-whipped and shot at by defendants. Since the defendants claimed that they did not have any guns, and since an element of the crime of assault in the second degree for which they were convicted requires that physical injury be caused by use of a deadly weapon or a dangerous instrument (Penal Law § 120.05[2] ), the prosecutor's reference to matters not in evidence, and his asking the jury to infer that such matters
| (Cite as: 130 A.D.2d 597, *598, 515 N.Y.S.2d 306, **307) |
corroborated the complainant's testimony, was highly prejudicial (see, e.g., People v Wright, 41 N.Y.2d 172, 175, 391 N.Y.S.2d 101, 359 N.E.2d 696; People v. Billingsley, 74 A.D.2d 645, 425 N.Y.S.2d 139).
[3] Finally, during summation the prosecutor asked the jury to infer that the defendants were selling drugs, although no such evidence or testimony was presented at trial to support such an inference. That improper comment was similarly prejudicial (see, e.g., People v. Blackman, 88 A.D.2d 620, 450 N.Y.S.2d 38). The cumulative effect of all those errors requires a new trial.
END OF DOCUMENT
| Copr. (C) West 1999 No Claim to Orig. U.S. Govt. Works |
|
