People v. Blackman

Appellate Division of the Supreme Court of New York

People v. Blackman

31 A.D.2d 626, 295 N.Y.S.2d 798, 1968 N.Y. App. Div. LEXIS 2641

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

DecidedDecember 19, 1968

StatusPublished

Cited by3 cases

This text of 31 A.D.2d 626 (People v. Blackman) 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. Blackman, 31 A.D.2d 626, 295 N.Y.S.2d 798, 1968 N.Y. App. Div. LEXIS 2641 (N.Y. Ct. App. 1968).

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Opinion

Appeal from a judgment of .the Supreme Court, rendered July 11, 1966 in Bronx County, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Per Curiam.

The defendant was convicted, after a jury trial, of the crime of manslaughter in the first degree.

As the trial unfolded, however, at least two errors occurred that require reversal and a new trial.

First, the factual pattern indicates the defendant, on the afternoon of New Year’s Day in the year 1966, visited the flat of a friend, intent on nothing but sociality. However, his exuberance offended another guest, one Milliman, who departed and awaited without, armed with a very large board, which could be described as a plank. When the defendant emerged, a fracas followed wherein Milliman, a man of huge proportions, broke the board over the defendant’s head. The melee ended in the street when the defendant stabbed Milliman, causing his death. There are indications that the deeased, Milliman, also wielded a bent rotisserie skewer. Yet, the Trial Judge failed to instruct the jury correctly on the issue of justification in the presence of an aggressor bent on the perpetration of a felony. The precedents maintain that where ,a felony is actually about to be committed, and here the record shows that the deceased was attacking the defendant with at least a plank, there is at law no duty to retreat before the defendant will be justified in committing homicide in self defense. (People v. Ligouri, 284 N. Y. 309.)

Secondly, .the Assistant District Attorney, in his summation, improperly and in two instances adverted .to .the fact that there was only one witness who testified as to what took place, impliedly alluding to the fact that defendant did not testify. At one point the Assistant District Attorney invited the jury to scrutinize the record and they would find that the testimony of one eyewitness was “the only testimony that was presented which had reference to what took place.” Again, referring .to the single eyewitness, he characterized him as “■the only person who .took the stand.” Although there were immediate objections by counsel for the defendant, the court made no timely intervention and [627]*627correction in clarification of the defendant’s constitutional privilege not to testify without having a presumption created against him. In their context, the remarks being clearly an improper reference to the defendant’s failure to take the stand, the defendant’s statutory right was violated. (Code Crim. Pro., § 393; People v. Leavitt, 301 N. Y. 113, 118; People v. Gould, 25 A D 2d 160; Anderson v. Nelson, 390 U. S. 523; Chapman v. California, 386 U. S. 18; Desmond v. United States, 345 F. 2d 225.)

Accordingly, on these two grounds alone, the judgment should be reversed and a new trial ordered, on the law and in the interests of justice.

Stevens, J. P., Eager, Capozzoli, McGivem and Bastow, JJ., concur.

Judgment of conviction unanimously reversed and a new trial ordered, on the law and in the interests of justice.

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Appeal from a judgment of .the Supreme Court, rendered July 11, 1966 in Bronx County, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

Per Curiam.

The defendant was convicted, after a jury trial, of the crime of manslaughter in the first degree.

As the trial unfolded, however, at least two errors occurred that require reversal and a new trial.

First, the factual pattern indicates the defendant, on the afternoon of New Year’s Day in the year 1966, visited the flat of a friend, intent on nothing but sociality. However, his exuberance offended another guest, one Milliman, who departed and awaited without, armed with a very large board, which could be described as a plank. When the defendant emerged, a fracas followed wherein Milliman, a man of huge proportions, broke the board over the defendant’s head. The melee ended in the street when the defendant stabbed Milliman, causing his death. There are indications that the deeased, Milliman, also wielded a bent rotisserie skewer. Yet, the Trial Judge failed to instruct the jury correctly on the issue of justification in the presence of an aggressor bent on the perpetration of a felony. The precedents maintain that where ,a felony is actually about to be committed, and here the record shows that the deceased was attacking the defendant with at least a plank, there is at law no duty to retreat before the defendant will be justified in committing homicide in self defense. (People v. Ligouri, 284 N. Y. 309.)

Secondly, .the Assistant District Attorney, in his summation, improperly and in two instances adverted .to .the fact that there was only one witness who testified as to what took place, impliedly alluding to the fact that defendant did not testify. At one point the Assistant District Attorney invited the jury to scrutinize the record and they would find that the testimony of one eyewitness was “the only testimony that was presented which had reference to what took place.” Again, referring .to the single eyewitness, he characterized him as “■the only person who .took the stand.” Although there were immediate objections by counsel for the defendant, the court made no timely intervention and [627]*627correction in clarification of the defendant’s constitutional privilege not to testify without having a presumption created against him. In their context, the remarks being clearly an improper reference to the defendant’s failure to take the stand, the defendant’s statutory right was violated. (Code Crim. Pro., § 393; People v. Leavitt, 301 N. Y. 113, 118; People v. Gould, 25 A D 2d 160; Anderson v. Nelson, 390 U. S. 523; Chapman v. California, 386 U. S. 18; Desmond v. United States, 345 F. 2d 225.)

Accordingly, on these two grounds alone, the judgment should be reversed and a new trial ordered, on the law and in the interests of justice.

Stevens, J. P., Eager, Capozzoli, McGivem and Bastow, JJ., concur.

Judgment of conviction unanimously reversed and a new trial ordered, on the law and in the interests of justice.

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Bluebook (online)

31 A.D.2d 626, 295 N.Y.S.2d 798, 1968 N.Y. App. Div. LEXIS 2641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-blackman-nyappdiv-1968.

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