People v. Clemons

48 A.D.2d 802, 369 N.Y.S.2d 445, 1975 N.Y. App. Div. LEXIS 9991

Opinion

Judgment of conviction, Supreme Court, New York County, rendered April 26, 1973, unanimously reversed, in the exercise of discretion and the interest of justice, and the case remanded for a new trial. Of the various errors claimed by defendant-appellant, three stand out to the extent that their sum cannot be deemed harmless in possible effect. An irrelevant statement by defendant as to the availability of cocaine was characterized by the court in the charge as an admission. Testimony was permitted by a detective concerning the hearsay statement made by an unidentified person two days after the arrest at the bar which was its scene, connected with defendant by the latter’s involvement with the same person a few moments later. Though excused as corroborative of the questioned identification of defendant, the statement and description of the surrounding circumstances were calculated to give the impression of a large-scale narcotic operation of which the unknown person was the ringleader. The last of the three errors was the inexcusable inflammatory statement in the prosecutor’s summation adjuring the jury to save their sympathy "for the parent whose child buys the first shot of heroin.” In our ■ view, defendant was thereby deprived of a fair trial. The other claimed errors have been reviewed and found to be without merit. Concur—Stevens, P. J., Markewich, Kupferman, Murphy and Lupiano, JJ.