People v. Attard

Appellate Division of the Supreme Court of New York

People v. Attard

42 A.D.2d 965, 347 N.Y.S.2d 967, 1973 N.Y. App. Div. LEXIS 3454

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 9, 1973

StatusPublished

This text of 42 A.D.2d 965 (People v. Attard) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Attard, 42 A.D.2d 965, 347 N.Y.S.2d 967, 1973 N.Y. App. Div. LEXIS 3454 (N.Y. Ct. App. 1973).

Pincite

Opinion

On- the court’s own motion, its decision herein, dated August 13, 1973, is amended to read as follows: Appeal by defendant from a judgment of the Supreme Court, Kings County, dated December 15, 1972, which convicted him, on a jury verdict, of arson in the second degree. Judgment reversed, on the law and in the interests of justice, and a new trial granted. We are of the opinion that the summation of the Assistant District Attorney was both improper and highly prejudicial and denied defendant a fair trial (People v. Figueroa, 38 A D 2d 595). Further, the charge by the court concerning the presumption of innocence was confusing in that from it the jury could have been under the erroneous impression that the presumption of innocence obtains “ unless and until and only if the evidence convinces ” the jury of defendant’s guilt beyond a reasonable doubt (emphasis supplied; see People v. Rossi, 14 A D 2d 558). In light of our decision it is not necessary to rule on the claims regarding the posttrial motion for a new trial on the ground of newly discovered evidence. Suffice it to say that GPL 330.40 (subd. 2, par. [f]) requires that the hearing court make findings of fact. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.

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On- the court’s own motion, its decision herein, dated August 13, 1973, is amended to read as follows: Appeal by defendant from a judgment of the Supreme Court, Kings County, dated December 15, 1972, which convicted him, on a jury verdict, of arson in the second degree. Judgment reversed, on the law and in the interests of justice, and a new trial granted. We are of the opinion that the summation of the Assistant District Attorney was both improper and highly prejudicial and denied defendant a fair trial (People v. Figueroa, 38 A D 2d 595). Further, the charge by the court concerning the presumption of innocence was confusing in that from it the jury could have been under the erroneous impression that the presumption of innocence obtains “ unless and until and only if the evidence convinces ” the jury of defendant’s guilt beyond a reasonable doubt (emphasis supplied; see People v. Rossi, 14 A D 2d 558). In light of our decision it is not necessary to rule on the claims regarding the posttrial motion for a new trial on the ground of newly discovered evidence. Suffice it to say that GPL 330.40 (subd. 2, par. [f]) requires that the hearing court make findings of fact. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.

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Bluebook (online)

42 A.D.2d 965, 347 N.Y.S.2d 967, 1973 N.Y. App. Div. LEXIS 3454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-attard-nyappdiv-1973.