People v. Freytes

48 A.D.2d 807, 369 N.Y.S.2d 411, 1975 N.Y. App. Div. LEXIS 10004

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1975
• Status: Published

Opinion

Judgment of conviction, Supreme Court, Bronx County, rendered April 5, 1973, unanimously reversed, on the law and in the interest of justice and the exercise of discretion, and the case remanded for a new trial. Defendant-appellant, charged with felony murder and related crimes, did not have a fair trial. There were three outstanding errors, and, since the sum of the prejudice of all three makes a new trial necessary, it is not required that each be evaluated separately, as to its possible prejudicial weight. A police sergeant was permitted to bolster the identification testimony of two eyewitnesses by his description of how they selected photographs from amongst a group submitted to them for examination, and also of how their statements to a police artist contributed to the making of a sketch of a wanted suspect. A knife, concededly unrelated to the subject crime, was received in evidence and referred to in the prosecutor’s summation, as was the sergeant’s testimony bolstering the identification. Testimony was also permitted to be given of the irrelevant fact that the victim of the crime had been a mild mannered person. The sum of error requires a new trial. Concur—Markewich, J. P., Murphy, Lupiano, Tilzer and Capozzoli, JJ.