People v. Alicea

46 A.D.2d 322, 362 N.Y.S.2d 480, 1974 N.Y. App. Div. LEXIS 3197

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1974
• Status: Published

Opinions

Steuer, J. P.

The able and painstaking dissent requires some explanation of how the majority could reach the conclusion to affirm. It has long been recognized that no trial is entirely free from error and it is only such error as precludes a proper determination that mandates a new trial (see CPL 470.05, subd. .1). We neither condone nor excuse the conduct of the Assistant District Attorney who conducted the prosecution and share the feeling of outrage that is implicit in. the dissent. Notwithstanding this visceral reaction, we do not believe that the totality of incidents, including those not specifically set out in the defense, prevented the jury from making a determination on the evidence. While the issues were vigorously contested by the defense, the essential elements were established beyond a reasonable doubt. The contention that the conceded homicide was committed in the course of self-defense is refuted by the circumstances of the killing. The proof was overwhelming that the shooting occurred while the deceased was in flight from the encounter between the four actors in the attempted robbery. Likewise, as to other contested details of the incidents leading up to the shooting, there was ample evidence to exclude any reasonable doubt. It is unfortunate and highly understandable that the prosecutor, either, through ignorance or a false sense , of values, overstepped the bounds of propriety to the extent of shocking the sensibilities of all concerned with the orderly processes of justice. But to reverse on this score would only provide a guilty defendant with an undeserved windfall.

The judgment of conviction should be affirmed.