People v. Balkum

Appellate Division of the Supreme Court of New York

People v. Balkum

94 A.D.2d 933, 464 N.Y.S.2d 63, 1983 N.Y. App. Div. LEXIS 18386

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

DecidedMay 25, 1983

StatusPublished

Cited by16 cases

This text of 94 A.D.2d 933 (People v. Balkum) 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. Balkum, 94 A.D.2d 933, 464 N.Y.S.2d 63, 1983 N.Y. App. Div. LEXIS 18386 (N.Y. Ct. App. 1983).

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Opinion

— Judgment unanimously reversed, as a matter of discretion in the interest of justice, and a new trial granted. Memorandum: Defendant was deprived of a fair trial because of the cumulative impact of the following errors CPeople v Johnson, 89 AD2d 506; People v Dowdell, 88 AD2d 239). The prosecutor repeatedly forced the defendant to characterize the police witnesses as lying, speaking untruths, wrong or mistaken. Such conduct is, of course, entirely improper and highly prejudicial to the defendant (see People v Galloway, 54 NY2d 396, 400; People v Guidice, 83 AD2d 756; see, also, People v [934]*934Bailey, 58 NY2d 272). Additionally, the court twice advised the jury that sufficient evidence had been presented for them to reach a verdict, thus creating “the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive” (People v Mendes, 3 NY2d 120,121; see, also, People v Bell, 38 NY2d 116,120). Most prejudicial, however, was the court’s inclusion of a Sandstrom charge (see Sandstrom v Montana, 442 US 510) both in its initial instructions and when the jury returned for reinstruction on the definition of intent. The court categorically stated that a person intends the natural and probable consequences of his act. The Sandstrom instruction was clearly not harmless error (see Connecticut v Johnson, 460 US_, 103 S Ct 969) inasmuch as it created a conclusive presumption of intent. Although it was neither objected to at trial nor raised on appeal, the record clearly indicates that the jury was affected by the charge. We therefore reverse the judgment of conviction as a matter of discretion in the interest of justice (see CPL 470.15, subd 6). (Appeal from judgment of Monroe County Court, Barr, J. — grand larceny, third degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.

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— Judgment unanimously reversed, as a matter of discretion in the interest of justice, and a new trial granted. Memorandum: Defendant was deprived of a fair trial because of the cumulative impact of the following errors CPeople v Johnson, 89 AD2d 506; People v Dowdell, 88 AD2d 239). The prosecutor repeatedly forced the defendant to characterize the police witnesses as lying, speaking untruths, wrong or mistaken. Such conduct is, of course, entirely improper and highly prejudicial to the defendant (see People v Galloway, 54 NY2d 396, 400; People v Guidice, 83 AD2d 756; see, also, People v [934]*934Bailey, 58 NY2d 272). Additionally, the court twice advised the jury that sufficient evidence had been presented for them to reach a verdict, thus creating “the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive” (People v Mendes, 3 NY2d 120,121; see, also, People v Bell, 38 NY2d 116,120). Most prejudicial, however, was the court’s inclusion of a Sandstrom charge (see Sandstrom v Montana, 442 US 510) both in its initial instructions and when the jury returned for reinstruction on the definition of intent. The court categorically stated that a person intends the natural and probable consequences of his act. The Sandstrom instruction was clearly not harmless error (see Connecticut v Johnson, 460 US_, 103 S Ct 969) inasmuch as it created a conclusive presumption of intent. Although it was neither objected to at trial nor raised on appeal, the record clearly indicates that the jury was affected by the charge. We therefore reverse the judgment of conviction as a matter of discretion in the interest of justice (see CPL 470.15, subd 6). (Appeal from judgment of Monroe County Court, Barr, J. — grand larceny, third degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.

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Bluebook (online)

94 A.D.2d 933, 464 N.Y.S.2d 63, 1983 N.Y. App. Div. LEXIS 18386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-balkum-nyappdiv-1983.

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