People v. Dowdell

88 A.D.2d 239, 453 N.Y.S.2d 174, 1982 N.Y. App. Div. LEXIS 16612
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 29, 1982
StatusPublished
Cited by42 cases

This text of 88 A.D.2d 239 (People v. Dowdell) 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. Dowdell, 88 A.D.2d 239, 453 N.Y.S.2d 174, 1982 N.Y. App. Div. LEXIS 16612 (N.Y. Ct. App. 1982).

Opinions

OPINION OF THE COURT

Ross, J.

The appeal now before this court, presents the question of when error, seemingly harmless, becomes prejudicial so as to deprive appellant of a fair trial? In this case, appellant’s guilt was established by overwhelming evidence, and if this case had been tried without the numerous errors, hereinafter discussed, appellant’s conviction would [240]*240have been readily affirmed. However, the cumulative effect of these several errors denied appellant a fair trial.

To begin, an examination of the facts is appropriate.

In the afternoon of February 2, 1979, Police Officers Charles Barberier and Matthew Carr were on anticrime patrol on the upper eastside of Manhattan. At approximately 3:40 p.m. the officers were traveling in their unmarked vehicle in a westerly direction on East 83rd Street, when they observed defendant and codefendant, Gregory Simmons, emerge from the five-story residential building located at 242 East 83rd Street. As the duo exited the building, the officers saw that defendant was carrying a 19-inch television, which was not covered or encased in any manner, and. a white plastic bag, which upon subsequent investigation was found to contain two portable radios and two cameras. Simmons was observed to be carrying a dark plastic case which looked as though it housed a typewriter. Once on the street, defendant and his accomplice continuously glanced up and down and then headed eastward towards Second Avenue at a “very rapid pace”.

These officers were aware that the area in which they were patrolling had a high rate of burglaries and decided to investigate. Officer Barberier exited the patrol car and followed the two on foot while Officer Carr continued to drive around the block. Upon reaching Second Avenue, the two suspects turned right. Upon arriving at the intersection of 83rd Street and Second Avenue, Officer Barberier saw the two standing in the street next to a stopped taxicab, the rear door to which was open. As the officer approached, he noticed that the merchandise, which the two had been carrying, was now located in the street near the curb. The white plastic bag was open, the officer looked in and saw several cameras and radios. He identified himself as a police officer and displayed his shield. In response to several questions, the defendants stated that the property belonged to them, that they had purchased the goods uptown but did not have any receipts for them. The officer next inquired as to defendants’ whereabouts prior to this stop. One of them answered that they had just exited from a bus. The officer continued and asked whether they had just come from a building on 83rd Street. They [241]*241answered, “No”. Knowing this to be untrue, the officer unholstered his weapon and placed the defendants under arrest for possession of stolen property.

The defendants were ushered into a nearby building and the facts of the arrest were then communicated to Officer Carr. Shortly thereafter, .Carr arrived and searched the defendants. This search revealed that defendant possessed a screwdriver and some loose change. Simmons possessed a pocket calculator and several dollars. The defendants were then placed in the officers’ vehicle and all returned to 242 East 83rd Street.

Once at that location both defendants were given the appropriate preinterrogation warnings. Thereafter, Officer Barberier entered the subject building in order to determine where the defendants obtained the property. After searching the entire building, this officer could not find any visible signs of a forced entry and returned to the street where the defendants were being guarded. Appellant was questioned first. He was unco-operative and was returned to the police car. Simmons was then questioned. In the vestibule of the building this appellant stated that he was unemployed, in need of money, that they had taken the merchandise “from the top floor apartment in the rear” and that “the door was open”. Officer Barberier once again went to this apartment (5-C), and found that the door was locked. He then proceeded to the roof of the building and climbed down the fire escape. He noticed that the double-hung window to Apartment No. 5-C was partially opened. A metal gate, which was drawn across the interior of this window, was bent inward at the bottom. The officer was able to enter the apartment through this aperture. Once inside, he noticed that the apartment was ransacked. Officer Barberier found a telephone bill addressed to Regina McNamara, who was the lessee of the apartment. After leaving a note advising the tenant to call the precinct, the officer departed. Several days later the owner of the property identified the merchandise, which the defendants had in their possession when arrested, as belonging to her.

Appellant testified that on the day of this incident he and his wife had been present at a Family Court hearing. Simmons had accompanied them to the hearing. At ap[242]*242proximately 2:00 p.m., the three left the court and headed toward the Lexington Avenue subway. On the way to the subway, defendant and his wife engaged in an argument, which continued after they had boarded the uptown local. The argument became more heated and, at the behest of Simmons, the two men got off the subway at the nearest stop — 77th Street. Appellant’s wife continued her uptown trip. Once on Lexington Avenue, the two men walked north to 83rd Street and then easterly on this street to Second Avenue. Appellant asserted that neither he nor his companion entered the building located at 242 East 83rd Street. In addition, they were together at all times and never left each other’s sight.

The appellant maintained that at Second Avenue they turned right, whereupon appellant decided to locate his wife in order to amicably settle their differences. They were in the process of entering a cab when they were approached by an individual, who did not identify himself as a police officer, but who merely lifted up his shirt and displayed a revolver. Appellant thought it best to answer the inquiries made by this individual, who later was identified as Officer Barberier. The officer asked if the nearby merchandise belonged to them. They answered no, and now, for the first time, noticed that there was a television set, a typewriter and a white plastic bag located approximately 10 to 15 feet behind them on the sidewalk. In response to the further questioning by this officer, appellant stated that he and codefendant Simmons had just gotten off the subway and had not exited from any nearby building. Appellant testified that during the ensuing search, Officer Carr discovered $5 and some change in defendant’s pocket. Also, the screwdriver, which was allegedly found in appellant’s pocket, was actually discovered by Carr lying on the vestibule floor of the building where the search was conducted. The remainder of appellant’s testimony was consistent with the prior account given by the police officers and need not be repeated.

The evidence was certainly sufficient for a jury to convict appellant of the crime of burglary in the third degree; the crime which this jury did find appellant guilty beyond a reasonable doubt. However, on appeal, appellant urges [243]*243that this trial was so tainted with error that the judgment should be set aside. We agree.

The role of a prosecuting attorney during the course of a criminal trial, has recently been described as a “sensitive” one (People v Galloway, 54 NY2d 396, 399).

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Bluebook (online)
88 A.D.2d 239, 453 N.Y.S.2d 174, 1982 N.Y. App. Div. LEXIS 16612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dowdell-nyappdiv-1982.