People v. Hicks

102 A.D.2d 173, 478 N.Y.S.2d 256, 1984 N.Y. App. Div. LEXIS 18319
Appellate Division of the Supreme Court of the State of New York·Decided June 12, 1984·Published·Cited by 27 cases

Opinion

OPINION OF THE COURT

Milonas, J.

Defendant herein appeals from a judgment convicting him, following a jury trial, of assault in the second degree and sentencing him to an indeterminate term of imprisonment of from 2Vs to 7 years. At the trial, the complainant, John Friday, testified that at approximately 11:40 a.m. on November 25, 1981, he was driving alone in his Ford Torino in the vicinity of East 187th Street and Third Avenue in The Bronx when his car was sideswiped by a dark-colored Mercury with a twisted rear fender. The two vehicles pulled over to the side of the road. The operators [174]*174exited their respective automobiles and proceeded to inspect the extent of the damage. A passenger in the Mercury remained inside. Mr. Friday and the other driver discussed the incident, but they were unable to reach agreement on what had transpired so Mr. Friday suggested that the police be called. Although the driver of the Mercury volunteered to procure a police officer, he instead walked back to his automobile, engaged in a brief conversation with his companion and then returned to Mr. Friday. Upon reaching Mr. Friday, who was sitting in his car, the driver of the Mercury drew a gun and shot Friday in his left leg, demanding money. Before Mr. Friday had a chance to respond, the assailant fired again, this time hitting the complainant in his right knee.

Mr. Friday, in pain and fearing for his life, first directed the assailant to his glove compartment before finally removing $214 from his back pocket and handing the money to him. The passenger in the Mercury had left the vehicle, and, at this point, the assailant attempted to force the complainant into the Mercury. However, Mr. Friday pushed the assailant against his companion and managed to limp across Third Avenue. Within a block, the assailant caught up to him. Mr. Friday struggled with him until, at his friend’s urging, the assailant returned to his car, and the two men drove off. The complainant thereupon stumbled to a nearby garage where Police Officer Daniel De Pagnier, on duty in the general area, found him in a state of collapse. According to the officer, the complainant, who was in shock, very agitated and, in addition, suffers from a speech impediment, could only furnish incomplete and confused details regarding the incident in question. At any rate, the evidence does indicate a possible inconsistency between Mr. Friday’s original description of the assailant and the version which he ultimately provided to the police and in court. This discrepancy primarily involves the assailant’s age. The defense took every opportunity to point out that Officer De Pagnier had noted in his report that the assailant was a black male approximately 20 years of age, whereas the complainant later asserted that the man who shot him was in his late 30’s. (The defendant was, at the time of his trial, almost 40 years old.) The defendant’s [175]*175attorney also referred to Mr. Friday’s failure to supply Officer De Pagnier with a more precise description of his assailant, particularly in view of the complainant’s subsequent ability to recall further details. Thus, the defense made much of the complainant’s initial silence concerning the assailant’s height, weight, hair color and facial hair, as well the fact that he omitted to take down the license plate of the other vehicle.

Mr. Friday was brought to St. Barnabus Hospital where he was operated on for his gunshot wounds, and a .38 caliber bullet was removed from one knee. During his stay in the hospital, he was interviewed by Police Officer Richard Robinson. Officer Robinson testified that because of the complainant’s speech impediment and condition (he was apparently in considerable pain and under medication), he did not elicit much information. Officer Robinson did state, however, that Mr. Friday had advised him that the assailant’s car was green and gold, a description which conflicted with that given to Officer De Pagnier (a black over blue Mercury) and also with the vehicle which the defendant was later observed to be driving.

On December 31, 1981, some five weeks following the attack on him, Mr. Friday, in the company of his girlfriend, was in his automobile heading eastbound on East Tremont Avenue when he noticed the defendant’s automobile parked near a McDonald’s restaurant. After examining the vehicle, he proceeded to the 48th Precinct and related his story to the police. Two officers then escorted the complainant back to the scene in an unmarked car. Since the defendant’s vehicle was no longer in the same location, they cruised the neighborhood in search of it. Within a matter of minutes, the automobile, a dark Mercury with a twisted rear fender, was spotted double-parked on Tremont Avenue. The vehicle being unoccupied, the police officers stopped their own car and awaited the operator’s return. Shortly thereafter, Mr. Friday exclaimed, “There goes the man”, and pointed to the defendant as he walked down the street. The complainant was asked several times by the officers if he was certain that the defendant was his assailant, and he responded unequivocally in the affirmative. The defendant was then placed under arrest. Currency in [176]*176the amount of $257 was found in his possession, and it was later determined that he was the owner of the vehicle.

The defendant took the stand in his own behalf. Pursu: ant to a pretrial ruling by the court, he could only be questioned about a 1973 conviction for petit larceny which resulted in a fine. The defendant denied responsibility for the assault and robbery of the complainant, but he could not specifically remember what he was doing on November 25,1981. He claimed that on December 31,1981, the day of his arrest, he had encountered a friend of his wife’s (the woman who was with him when he was arrested) and that he agreed to give her a lift. He also stated that he was on his way to purchase liquor for a New Year’s Eve party.

While the proof introduced at trial was certainly sufficient to support the jury’s verdict, the evidence of guilt was hardly overwhelming since the crucial issue involved the accuracy of the complainant’s identification of the defendant as the perpetrator. In that connection, it is evident that the jury did not reach its verdict without difficulty. Deliberations commenced on June 29, 1982 at 12:35 p.m. Approximately four hours later, the jury declared that it was deadlocked. Following a modified Allen charge and reinstruction by the court on the elements of the offenses charged, deliberations resumed, continuing until nearly 10:00 p.m. The jury then announced an apparent compromise verdict: acquittal of the robbery and weapon counts; conviction of assault in the second degree. Although the jury, as the arbiter of credibility (People v Williams, 6 NY2d 18), could appropriately accept Mr. Friday’s account, as well as his identification of the defendant, and resolve any contradictions in the evidence in favor of the People, the improper conduct of the Assistant District Attorney severely undermined the accused’s right to a fair trial. Under these circumstances, the excessive zeal displayed by the prosecutor cannot be deemed to constitute harmless error. (People v Pressley, 93 AD2d 665.) The misconduct involved here occurred, for the most part, throughout the Assistant District Attorney’s cross-examination of the defendant and in his summation to the jury.

Although the issue was never raised in the defendant’s direct testimony, the prosecutor began his cross-examina[177]

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People v. Hicks, 102 A.D.2d 173, 478 N.Y.S.2d 256, 1984 N.Y. App. Div. LEXIS 18319 (N.Y. Ct. App. 1984).

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