People v. McAuliffe

Appellate Division of the Supreme Court of New York

People v. McAuliffe

43 A.D.2d 927, 352 N.Y.S.2d 477, 1974 N.Y. App. Div. LEXIS 5680

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

DecidedFebruary 21, 1974

StatusPublished

This text of 43 A.D.2d 927 (People v. McAuliffe) 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. McAuliffe, 43 A.D.2d 927, 352 N.Y.S.2d 477, 1974 N.Y. App. Div. LEXIS 5680 (N.Y. Ct. App. 1974).

Pincite

Opinion

Judgment, Supreme Court, Bronx County, rendered January 31, 1972, convicting defendant after trial of perjury in the first and third degrees and sentencing him to concurrent terms not to exceed one year imprisonment unanimously affirmed. Although we find the prosecutor’s examination of Detective Jasko concerning Ricardo Ramos’ testimony before the Grand Jury improper, upon this record we do not deem the questions prejudicial. Detective Jasko testified to the unsuccessful efforts he had made to find Ramos in order to subpoena him as a People’s witness. In answer to prosecution questions, Detective Jasko testified that he had examined the Grand Jury minutes and these established that Ramos had appeared and answered questions before that body. Later examination of the Grand Jury minutes revealed that in fact Ramos refused to answer questions other than to give his name and address and his employment record. He was charged with criminal contempt for his refusal to answer pertinent questions. Although we disapprove of what was done, we do not feel that the District Attorney intentionally sought to elicit misleading testimony to bolster the People’s ease. Ramos was an active participant in events crucial to the People’s proof and the prosecutor was well within his rights to seek to dispel any unfavorable inference that might have been drawn from failure to call Ramos. We deplore the method used but feel that the evidence of guilt was clear and that the substantial rights of defendant were not prejudiced and defendant was not deprived of a fair trial. (CPL 470.05, subd. 1.) We have examined the other points raised by defendant and find them without merit. The ease is remitted to the Criminal Term, Supreme Court, Bronx County, for proceedings to direct defendant to surrender himself to said court in order that execution of the judgment be commenced or resumed. (CPL 460.50, subd. 5.) Concur — Markewich, J. F., Nunez, Kupferman, Steuer and Capozzoli, JJ.

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Judgment, Supreme Court, Bronx County, rendered January 31, 1972, convicting defendant after trial of perjury in the first and third degrees and sentencing him to concurrent terms not to exceed one year imprisonment unanimously affirmed. Although we find the prosecutor’s examination of Detective Jasko concerning Ricardo Ramos’ testimony before the Grand Jury improper, upon this record we do not deem the questions prejudicial. Detective Jasko testified to the unsuccessful efforts he had made to find Ramos in order to subpoena him as a People’s witness. In answer to prosecution questions, Detective Jasko testified that he had examined the Grand Jury minutes and these established that Ramos had appeared and answered questions before that body. Later examination of the Grand Jury minutes revealed that in fact Ramos refused to answer questions other than to give his name and address and his employment record. He was charged with criminal contempt for his refusal to answer pertinent questions. Although we disapprove of what was done, we do not feel that the District Attorney intentionally sought to elicit misleading testimony to bolster the People’s ease. Ramos was an active participant in events crucial to the People’s proof and the prosecutor was well within his rights to seek to dispel any unfavorable inference that might have been drawn from failure to call Ramos. We deplore the method used but feel that the evidence of guilt was clear and that the substantial rights of defendant were not prejudiced and defendant was not deprived of a fair trial. (CPL 470.05, subd. 1.) We have examined the other points raised by defendant and find them without merit. The ease is remitted to the Criminal Term, Supreme Court, Bronx County, for proceedings to direct defendant to surrender himself to said court in order that execution of the judgment be commenced or resumed. (CPL 460.50, subd. 5.) Concur — Markewich, J. F., Nunez, Kupferman, Steuer and Capozzoli, JJ.

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Bluebook (online)

43 A.D.2d 927, 352 N.Y.S.2d 477, 1974 N.Y. App. Div. LEXIS 5680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcauliffe-nyappdiv-1974.