People v. Smalls

94 A.D.2d 777, 462 N.Y.S.2d 728, 1983 N.Y. App. Div. LEXIS 18238

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 1983
• Status: Published

Opinions

Appeal by defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 22, 1979, convicting him of attempted murder in the second 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. Defendant was charged, inter alia, with attempted murder in the second degree, arising out of the shooting of one Cleveland Layne in a tavern on October 29, 1978. Prior to trial, defendant moved to preclude the People from introducing, on their direct case, evidence relating to Layne’s testimony against defendant in a prior criminal trial in 1972 which resulted in his conviction for manslaughter in the first degree arising out of the shooting death of one Barber Mitchell. It was argued that the prejudicial effect of such testimony would far outweigh its probative value. Alternatively, it was requested that the People be permitted to elicit from Layne the fact that he had previously testified against defendant, but not the nature of the underlying charges. Criminal Term ruled that it would permit introduction of the underlying facts and circumstances material and relevant to the earlier incident, but not the fact that defendant was convicted of manslaughter and was sentenced. At trial the following testimony was elicited from Layne on the People’s direct case: “Q. Did you recognize the man who shot you? A. Yes. Q. Who is he? What is his name? A. Larry Smalls. Q. Did there come a time in 1970 or 1971 when you had seen Mr. Smalls before? A. Yes. Q. And under what circumstances did you see Smalls then? A. In the courthouse. Q. Did you testify against him? A. Yes. Q. Did you testify against him for killing Barbara Mitchell? *** A. Yes, I did. *** Q. Please tell us the circumstances that led you to testify in that courtroom back in 1970 or ’71? A. I was subpoenaed to go to the courthouse. I was out with three young ladies that night. * * * Q. All right, Mr. Layne, what happened in 1970 or ’71 that led you to testify in that courtroom? A. He shot Barbara Mitchell. Q. And did you see that happen? A. Yes, I did. Q. And how many days did you go to Court? A. Three days. Q. And you testified? A. Yes.” Thereafter, during his summation, the prosecutor made several references to defendant’s prior trial and conviction. He stated: “What did Smalls do? He shot the gun and it went through [Layne’s] neck and up his mouth. And he walked rightout [szc]. Just like he left Barbara Mitchell at that time on the street”. An objection taken to this statement was sustained by the court and the jury was instructed to disregard it. Moments later, the prosecutor commented: “Look at Larry Smalls sitting there now behind those sunglasses, not a flicker of emotion on his face. Because cold-blooded killers don’t have any emotions or you [sic] couldn’t do the things they do * * * He was going to blow the brains out of Cleveland Layne because Cleveland Layne testified against him once before”, and later: “You know, Cleveland Layne had a lot of guts to take the stand and testify. He had a lot of guts to take the stand eight years ago and testify”. We agree with the defendant that the admission of the afore-mentioned testimony, coupled with the prosecutor’s comments in regard thereto, served to deprive him of his right to a fair trial. “It is fundamental that evidence of uncharged crimes is not admissible if the sole purpose is to show that the defendant was predisposed to commit the crime charged” (People v Allweiss, 48 NY2d 40, 46). Where the evidence of a prior crime, however, is sought to be introduced as probative of the crime charged, the trial court is required to engage in a process of balancing, “in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other” (People v Ventimiglia, 52 NY2d 350, 359-360). Here, while testimony as to the prior crime may have been probative of the issues of motive and identity (People v Molineux, 168 NY 264), it was not necessary that the jury be made aware that the prior crime involved a “killing” in which the defendant shot Barbara Mitchell. It would have been more than sufficient for Layne to have told the jury that he had testified against the defendant at a prior criminal trial as a result of which the defendant had been convicted. In this way a proper balance would háve been struck. The probative value of the evidence could have been preserved while, at the same time, the defendant would not have been unduly prejudiced (People v Ventimiglia, supra). Because the prosecutor improperly elicited the fact that the defendant had previously killed an individual with a gun, the jurors may have voted to convict the defendant on the basis of his prior criminal history (especially since the instant crime involved shooting with intent to kill), rather than upon their being convinced beyond a reasonable doubt of his guilt of the crime charged (People v Ventimiglia, supra; People v Blanchett, 83 AD2d 905). Moreover, the prosecutor’s summation, in which he stressed the prior homicide characterized the defendant as a “cold-blooded” killer, and stated that the defendant “walked rightout [sic]. Just like he left Barbara Mitchell at that time on the street”, was clearly improper (People v Termini, 65 AD2d 825, 826). The summation was also prejudicial in that the prosecutor repeatedly asserted that the defendant’s alibi witness and another witness, a bar maid who testified that she did not see the defendant at the bar that night, were lying (see People v Schaaff, 71 AD2d 630; People v Burnside, 52 AD2d 626). Under the circumstances, defendant was denied a fair trial and a new trial is required. Brown, J. P., Niehoff and Rubin, JJ., concur.