People v. Griffin

17 A.D.2d 658, 230 N.Y.S.2d 354, 1962 N.Y. App. Div. LEXIS 8590

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 1962
• Status: Published

Opinions

Appeal by defendant from a judgment of the County Court, Queens County, rendered May 3, 1960 after a jury trial, convicting him of incest and impairing the morals of a minor; sentencing him to serve a term of 5 to 10 years on the incest count; and suspending sentence on the morals impairment count. Judgment reversed on the law and the facts, and a new trial granted. In the interests of justice there should be a new trial because of the nature of the proof adduced and because of the conduct of the prosecutor. The proof adduced was not of the clear and convincing kind required to establish beyond a reasonable doubt the defendant’s guilt in a case which, as here, involves sex and in which no corroboration is needed (cf. People v. Porcaro, 6 N Y 2d 248; People v. Oyola, 6 N Y 2d 259, 262; People v. Slaughter, 278 N. Y. 479). The conduct of the prosecutor also deprived defendant of a fair trial. In his summation the prosecutor not only made remarks calculated to inflame the jury but he also, in effect, made himself an unsworn witness against defendant; he endeavored to support his case by his own veracity and position. In a case such as this, where the proof was weak and unconvincing, such conduct on the part of the prosecutor requires a reversal (cf. People v. Jackson, 7 N Y 2d 142; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; People v. Nicoll, 3 A D 2d 64; People v. Gioia, 286 App. Div. 528). Ughetta, Kleinfeld, Christ and Hill, JJ., concur;