People v. McLeod

84 A.D.2d 794, 444 N.Y.S.2d 17, 1981 N.Y. App. Div. LEXIS 15993

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1981
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered July 31, 1980, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Although sufficient evidence was adduced in this “pure” identification case to support a jury verdict finding defendant guilty of attempted robbery in the first degree, comments by the prosecutor upon summation clearly deprived defendant of a fair trial. It was improper, inter alia, to state “this is a project where kids, defendants spend idle hours hanging around mailboxes on special days when the checks come in” and it was error under the circumstances of this case for the prosecutor to suggest that the complaining witness was exposing herself to danger by testifying and to pose the rhetorical question “To what kind of danger is she exposing herself even now?” (See People v Bryant, 77 AD2d 603, 604.) It was additionally reversible error in the circumstances of this case for the trial court to have refused a request to charge that the People had the burden of proving every element of the crime charged beyond a reasonable doubt. (People v Newman, 46 ; People v Coleman, 70 AD2d 600.) Accordingly, defendant’s conviction must be reversed and a new trial ordered. Hargett, J.P., O’Connor, Weinstein and Bracken, JJ., concur.