People v. Smith

Appellate Division of the Supreme Court of New York

People v. Smith

44 A.D.2d 789, 355 N.Y.S.2d 127, 1974 N.Y. App. Div. LEXIS 5078

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

DecidedMay 7, 1974

StatusPublished

This text of 44 A.D.2d 789 (People v. Smith) 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. Smith, 44 A.D.2d 789, 355 N.Y.S.2d 127, 1974 N.Y. App. Div. LEXIS 5078 (N.Y. Ct. App. 1974).

Pincite

Opinion

Judgment, Supreme Court, Bronx County, rendered October 4, 1972, convicting the defendant, after a jury verdict, of possession of a weapon as a felony and sentencing him to a maximum of seven years in prison, unanimously reversed on the law and in the interests of justice and a new trial directed before a different Judge. The defendant was indicted on two drug counts, in addition to the gun charge. The jury returned a verdict of not guilty on the narcotics counts. In our opinion, defendant was deprived of a fair and impartial trial by the trial court. In his opening remarks to the jury, defense counsel indicated that the defense position was that the contraband had been taken from the bar of the bar and grill where the arrest occurred, and “planted” on the defendant. While some comment on this by the court may have been warranted, unfortunately the Trial Justice repeatedly adverted to this position in derogatory fashion, and the trial was reduced to a contest between defense counsel and the court on this point, to the prejudice of the defendant. Under the circumstances, a new trial is warranted, and it is prefferable that it take place before a different Judge. (People v. Ohanian, 245 N. Y. 227; People v. Sostre, 37 A D 2d 574; United States v. Nazzaro, 472 P. 2d 302; cf. People v. Mendes, 3 N Y 2d 120.) We have examined appellant’s other points and find no error. Concur — Nunez, J. P., Kupferman, Steuer, Capozzoli and Lane, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Judgment, Supreme Court, Bronx County, rendered October 4, 1972, convicting the defendant, after a jury verdict, of possession of a weapon as a felony and sentencing him to a maximum of seven years in prison, unanimously reversed on the law and in the interests of justice and a new trial directed before a different Judge. The defendant was indicted on two drug counts, in addition to the gun charge. The jury returned a verdict of not guilty on the narcotics counts. In our opinion, defendant was deprived of a fair and impartial trial by the trial court. In his opening remarks to the jury, defense counsel indicated that the defense position was that the contraband had been taken from the bar of the bar and grill where the arrest occurred, and “planted” on the defendant. While some comment on this by the court may have been warranted, unfortunately the Trial Justice repeatedly adverted to this position in derogatory fashion, and the trial was reduced to a contest between defense counsel and the court on this point, to the prejudice of the defendant. Under the circumstances, a new trial is warranted, and it is prefferable that it take place before a different Judge. (People v. Ohanian, 245 N. Y. 227; People v. Sostre, 37 A D 2d 574; United States v. Nazzaro, 472 P. 2d 302; cf. People v. Mendes, 3 N Y 2d 120.) We have examined appellant’s other points and find no error. Concur — Nunez, J. P., Kupferman, Steuer, Capozzoli and Lane, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

44 A.D.2d 789, 355 N.Y.S.2d 127, 1974 N.Y. App. Div. LEXIS 5078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-nyappdiv-1974.

Opinion

Related

Cite This Page — Counsel Stack