People v. Buffalino

49 A.D.2d 950, 374 N.Y.S.2d 48, 1975 N.Y. App. Div. LEXIS 11234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1975
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 2, 1974, convicting him of manslaughter in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Questions of fact have not been considered. During summation the prosecutor made flagrant misuse of evidence of a prior conviction (see People v Sorge, 301 NY 198). Based upon an assault conviction some 15 years earlier, he described defendant as an "assaultive type of character” and "not the type of man who under every circumstance keeps his cool.” Further, the prosecutor explored the circumstances surrounding the earlier crime, for which defendant had received a suspended sentence, suggesting that defendant had been treated too leniently and that this past injustice could be remedied by returning a verdict of guilty in this prosecution. Despite intervention by the Trial Judge, the prosecutor persisted. Such extreme misconduct deprived defendant of his fundamental right to a fair trial. Accordingly, the judgment should be reversed and a new trial had (People v Crimmins, 36 NY2d 230). Latham, Acting P. J., Cohalan, Brennan, Munder and Shapiro, JJ., concur.