People v. Gregory

Appellate Division of the Supreme Court of New York

People v. Gregory

19 A.D.2d 749, 242 N.Y.S.2d 892, 1963 N.Y. App. Div. LEXIS 3346

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

DecidedJuly 8, 1963

StatusPublished

Cited by2 cases

This text of 19 A.D.2d 749 (People v. Gregory) 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. Gregory, 19 A.D.2d 749, 242 N.Y.S.2d 892, 1963 N.Y. App. Div. LEXIS 3346 (N.Y. Ct. App. 1963).

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Opinion

Appeal by defendant: (a) from a judgment of the former County Court, Queens County, rendered January 12, 1962 after a jury trial, convicting him of robbery in the first degree and conspiracy to commit robbery in the first degree, and imposing sentence; and (b) from two intermediate orders, made on November 13, 1961 and November 22, 1961, respectively. Judgment reversed on the law and a new trial granted. The finding's of fact have not been considered. No separate appeal lies from the intermediate orders, which nevertheless have been reviewed on the appeal from the judgment (Code Grim, Pro., § 517, subd. 3). During cross-examination, an accomplice witness for the People denied that he expected or had been promised leniency. Thereupon, an Assistant District Attorney, who was not the prosecuting attorney, but who had participated in the People’s preparation of this case, made himself [750]*750an unsworn witness against the defendant by stating in open court: “If I had made any promise to this person or any other person, in my function and office as an Assistant District Attorney, I would have advised the Court of that and -also counsel.” He thus endeavored, iby the weight of his own veracity and official position, to support the credibility of a key prosecution witness who was then testifying. 'Thereafter, the trial Assistant District Attorney, in his summation recalled this statement to the jury, and he suggested to them that they believe his colleague’s unsworn statement. In our opinion, the circumstance and content of that unsworn remark, coupled with the prosecutor’s later comment thereon, placed the veracity and position of these Assistant District Attorneys in issue and, consequently, so prejudiced the defendant that he was deprived of a fair trial (People v. Jackson, 7 N Y 2d 142; People v. Lomeilo, 1N Y 2d 436). Beldoek, P. J., Kleinfeld, Christ, Rabin -and Hopkins, JJ., concur.

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Appeal by defendant: (a) from a judgment of the former County Court, Queens County, rendered January 12, 1962 after a jury trial, convicting him of robbery in the first degree and conspiracy to commit robbery in the first degree, and imposing sentence; and (b) from two intermediate orders, made on November 13, 1961 and November 22, 1961, respectively. Judgment reversed on the law and a new trial granted. The finding's of fact have not been considered. No separate appeal lies from the intermediate orders, which nevertheless have been reviewed on the appeal from the judgment (Code Grim, Pro., § 517, subd. 3). During cross-examination, an accomplice witness for the People denied that he expected or had been promised leniency. Thereupon, an Assistant District Attorney, who was not the prosecuting attorney, but who had participated in the People’s preparation of this case, made himself [750]*750an unsworn witness against the defendant by stating in open court: “If I had made any promise to this person or any other person, in my function and office as an Assistant District Attorney, I would have advised the Court of that and -also counsel.” He thus endeavored, iby the weight of his own veracity and official position, to support the credibility of a key prosecution witness who was then testifying. 'Thereafter, the trial Assistant District Attorney, in his summation recalled this statement to the jury, and he suggested to them that they believe his colleague’s unsworn statement. In our opinion, the circumstance and content of that unsworn remark, coupled with the prosecutor’s later comment thereon, placed the veracity and position of these Assistant District Attorneys in issue and, consequently, so prejudiced the defendant that he was deprived of a fair trial (People v. Jackson, 7 N Y 2d 142; People v. Lomeilo, 1N Y 2d 436). Beldoek, P. J., Kleinfeld, Christ, Rabin -and Hopkins, JJ., concur.

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Bluebook (online)

19 A.D.2d 749, 242 N.Y.S.2d 892, 1963 N.Y. App. Div. LEXIS 3346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gregory-nyappdiv-1963.

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