People v. Powell

Appellate Division of the Supreme Court of New York

People v. Powell

64 A.D.2d 676, 407 N.Y.S.2d 233, 1978 N.Y. App. Div. LEXIS 12504

Appellate Division of the Supreme Court of the State of New York·Decided July 24, 1978·Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 31, 1977, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and [677] imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. The proof against the defendant was not overwhelming, a sharp issue of identification was presented, and the defendant adduced alibi testimony, all of which emphasized the importance of a fair trial. We find that the Assistant District Attorney, in her summation, exceeded the bounds of due process in her reference to defense counsel and the alibi witnesses (see People v Sarmiento, 40 AD2d 562; People v Coles, 47 AD2d 905; People v Burnside, 52 AD2d 626; People v Tatum, 54 AD2d 950). Since the issue of guilt was close, the references were prejudicial and require a new trial. Hopkins, J. P., Damiani, Titone and Suozzi, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 31, 1977, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and [677] imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. The proof against the defendant was not overwhelming, a sharp issue of identification was presented, and the defendant adduced alibi testimony, all of which emphasized the importance of a fair trial. We find that the Assistant District Attorney, in her summation, exceeded the bounds of due process in her reference to defense counsel and the alibi witnesses (see People v Sarmiento, 40 AD2d 562; People v Coles, 47 AD2d 905; People v Burnside, 52 AD2d 626; People v Tatum, 54 AD2d 950). Since the issue of guilt was close, the references were prejudicial and require a new trial. Hopkins, J. P., Damiani, Titone and Suozzi, JJ., concur.

People v. Powell, 64 A.D.2d 676, 407 N.Y.S.2d 233, 1978 N.Y. App. Div. LEXIS 12504 (N.Y. Ct. App. 1978).

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