People v. Figueroa

94 A.D.2d 801, 462 N.Y.S.2d 1022, 1983 N.Y. App. Div. LEXIS 18273

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1983
• Status: Published

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Queens County (Weiss, J.), rendered December 7, 1979, convicting him of criminal sale of a controlled substance in the sixth degree, criminal possession of a controlled substance in the sixth degree, criminal sale of marihuana in the fourth degree, and criminal possession of marihuana in the fifth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress evidence (Wilowski, J.). Judgment reversed, on the law, motion to suppress evidence granted, and a new trial ordered. The People concede that reversal is mandated by this court’s decision in People v Calderon (88 AD2d 604), involving an appeal by appellant’s codefendant. However, the People urge that this court overrule that decision as well as People v Delgado (79 AD2d 976) and others following it. The holding in those cases followed the reasoning set forth by the Court of Appeals in People v Havelka (45 NY2d 636) and People v Lypka (36 NY2d 210) and has been adhered to in subsequent decisions of the court (see e.g., People v Green, 87 AD2d 892; People vPetralia, 93 AD2d 842). We also note that the prosecutor was overzealous in his summation by making reference to matters outside of the evidence and appealing to the jurors’ emotions by intemperate remarks referring to the jurors and their families as victims, and dramatizing the relationship between the use of narcotics and crimes of violence. Gulotta, J. P., O’Connor, Bracken and Brown, JJ., concur.