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People v. Torres

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
223 A.D.2d 741 (N.Y. App. Div. 1996)


January 29, 1996

Appeal from the Supreme Court, Queens County (Cohen, J., Eng, J.).

Ordered that the judgment rendered September 29, 1993, is reversed, on the law, and a new trial is ordered; and it is further,

Ordered that the amended judgments are affirmed.

The Supreme Court properly determined that the People's failure to include the complainant's identification of the defendant at the police precinct in their CPL 710.30 notice did not require preclusion of all identification testimony ( see, People v Simmons, 221 A.D.2d 484). The precinct identification, which occurred approximately 10 minutes after the complainant had pointed out the defendant on the street, was merely confirmatory ( see, People v Branigan, 207 A.D.2d 459; People v Wilkins, 190 A.D.2d 874). Further, the court properly concluded that the precinct identification was not unduly suggestive ( see, People v Wilkins, supra).

However, several remarks made by the prosecutor during summation, which exceeded the bounds of proper advocacy and improperly shifted the burden of proof, deprived the defendant of his right to a fair trial. The prosecutor's personal attacks on the defense counsel were improper ( see, People v Kent, 125 A.D.2d 590, 591). Moreover, the prosecutor's statements that there was no evidence in the case to indicate that the defendant was elsewhere on the date of the incident and "no other evidence that he was anywhere else except where [the complainant] says he was, robbing her" improperly focused on the defendant's failure to testify and suggested that the defendant had an obligation to come forward with evidence explaining his whereabouts ( see, People v Kent, supra, at 591).

The prejudice to the defendant was compounded when, upon overruling the defense counsel's objections and denying her application for a mistrial, the court commented that the argument could be made and it was for the jury to accept or reject it ( see, People v Kent, supra, at 591; People v Brown, 91 A.D.2d 615, 616). While a prompt corrective instruction may have cured the prejudice, the court's subsequent instruction in its final charge did not do so ( see, People v Brown, supra, at 615). We do not find the error to be harmless.

In light of our determination, it is unnecessary to address the defendant's remaining contentions regarding the admissibility of certain evidence and the sentence imposed for his conviction of robbery in the second degree.

The prosecutorial misconduct does not, however, require reversal of the amended judgments entered on the defendant's previous convictions for his violation of two sentences of probation. The court held a hearing and made an independent finding that the defendant was guilty of a violation of probation in each of those cases ( compare, People v Clark, 45 N.Y.2d 432; People v Smith, 163 A.D.2d 210). Because we are reversing the defendant's conviction for robbery in the second degree, it is unnecessary to address his contention that it was unduly harsh to run the concurrent sentences imposed for the two violations of probation consecutive to the sentence imposed on the robbery conviction. The sentences imposed pursuant to the amended judgments were not otherwise excessive ( see, People v Suitte, 90 A.D.2d 80). Santucci, J.P., Altman, Friedmann and Goldstein, JJ., concur.

Summaries of

People v. Torres

Appellate Division of the Supreme Court of New York, Second Department
Jan 29, 1996
223 A.D.2d 741 (N.Y. App. Div. 1996)
Case details for

People v. Torres

Case Details


Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 29, 1996


223 A.D.2d 741 (N.Y. App. Div. 1996)
637 N.Y.S.2d 214

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