People v. Castellano

Appellate Division of the Supreme Court of New York

People v. Castellano

273 A.D. 978, 78 N.Y.S.2d 356, 1948 N.Y. App. Div. LEXIS 5571

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

DecidedApril 19, 1948

StatusPublished

Cited by4 cases

This text of 273 A.D. 978 (People v. Castellano) 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. Castellano, 273 A.D. 978, 78 N.Y.S.2d 356, 1948 N.Y. App. Div. LEXIS 5571 (N.Y. Ct. App. 1948).

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Opinion

Judgment of the County Court of Kings County, convicting defendant of the crime of murder in the second degree, reversed on the law and new trial ordered. Defendant was deprived of a fair trial by the adverse and improper comments of the prosecutor during the course of summation (1) upon the race of deceased and defendant (Malinski v. New York, 324 U. S. 401, 434; People v. Esposito, 224 N. Y. 370, 373; Abbate v. Solan, 257 App. Div. 776; Saunders v. Champlain Bus Corp., 263 App. Div. 683), (2) upon the exercise by defendant of the right of peremptory challenge, together with appeals to individual jurors (People v. Creasy, 236 N. Y. 205, 226), and (3) upon defendant’s retention of an attorney and the payment of a fee to him, a subject on which defendant also had been improperly cross-examined. The prejudicial effect of this misconduct was accentuated by the court, which not only failed sternly to admonish the prosecutor but justified it, indulging at times in mild suggestions to the prosecutor to desist. Other prejudicial remarks and conduct of the prosecutor need not be enumerated as it is assumed that there will not be a recurrence thereof at the new trial. Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.

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Judgment of the County Court of Kings County, convicting defendant of the crime of murder in the second degree, reversed on the law and new trial ordered. Defendant was deprived of a fair trial by the adverse and improper comments of the prosecutor during the course of summation (1) upon the race of deceased and defendant (Malinski v. New York, 324 U. S. 401, 434; People v. Esposito, 224 N. Y. 370, 373; Abbate v. Solan, 257 App. Div. 776; Saunders v. Champlain Bus Corp., 263 App. Div. 683), (2) upon the exercise by defendant of the right of peremptory challenge, together with appeals to individual jurors (People v. Creasy, 236 N. Y. 205, 226), and (3) upon defendant’s retention of an attorney and the payment of a fee to him, a subject on which defendant also had been improperly cross-examined. The prejudicial effect of this misconduct was accentuated by the court, which not only failed sternly to admonish the prosecutor but justified it, indulging at times in mild suggestions to the prosecutor to desist. Other prejudicial remarks and conduct of the prosecutor need not be enumerated as it is assumed that there will not be a recurrence thereof at the new trial. Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.

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Bluebook (online)

273 A.D. 978, 78 N.Y.S.2d 356, 1948 N.Y. App. Div. LEXIS 5571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-castellano-nyappdiv-1948.

Opinion

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