People v. Stoll

Appellate Division of the Supreme Court of New York

People v. Stoll

161 A.D.2d 171, 554 N.Y.S.2d 559, 1990 N.Y. App. Div. LEXIS 4870

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

DecidedMay 1, 1990

StatusPublished

This text of 161 A.D.2d 171 (People v. Stoll) 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. Stoll, 161 A.D.2d 171, 554 N.Y.S.2d 559, 1990 N.Y. App. Div. LEXIS 4870 (N.Y. Ct. App. 1990).

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Opinion

Judgment of the Supreme Court, New York County (Leslie Crocker Snyder, J., at hearing; Alvin Schlesinger, J., at trial), rendered May 12, 1988, convicting defendant, after jury trial, of assault in the second degree [172]*172(Penal Law § 120.05 [2]) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 2 Vi to 5 years, unanimously affirmed.

Defendant admitted slashing the complainant, Michael Francis, in the chest. The wound required six internal and 35 external stitches even though Francis was wearing a three-quarter-length leather coat, a heavy sweater and a shirt. Defendant conceded that Francis was unarmed and maintained that he took out a razor, allegedly only one-inch long, intending only to scare Francis and get him to leave defendant alone. Francis testified that defendant initiated the conflict, and defendant testified that he drew the weapon only after Francis threw him up against a van and that he "accidently cut” Francis while struggling to free himself from a bear hug. Defendant, however, admitted on cross-examination that his written statement, made at the time of his arrest some 12 days after the date of the incident, is devoid of any assertion that the injury to Francis was accidental.

For the first time upon this appeal, defendant raises objections to certain comments made in the course of summation by the prosecution. The Trial Justice on two occasions gave curative instructions to the jury sua sponte, but no objection was raised with respect to the parts of the prosecutor’s summation challenged on this appeal. The issue is therefore not preserved for appellate review (CPL 470.05 [2]; People v Kolb,. 118 AD2d 590, 591, lv denied 67 NY2d 945). While some of the prosecutor’s remarks were intemperate and he was properly admonished by the court, both sides attacked the veracity of the other’s witnesses. In our view, defendant was fairly convicted and retrial is unwarranted (People v Galloway, 54 NY2d 396, 400-401). Concur—Kupferman, J. P., Ross, Ellerin, Wallach and Rubin, JJ.

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Judgment of the Supreme Court, New York County (Leslie Crocker Snyder, J., at hearing; Alvin Schlesinger, J., at trial), rendered May 12, 1988, convicting defendant, after jury trial, of assault in the second degree [172]*172(Penal Law § 120.05 [2]) and sentencing him, as a second felony offender, to an indeterminate term of imprisonment of from 2 Vi to 5 years, unanimously affirmed.

Defendant admitted slashing the complainant, Michael Francis, in the chest. The wound required six internal and 35 external stitches even though Francis was wearing a three-quarter-length leather coat, a heavy sweater and a shirt. Defendant conceded that Francis was unarmed and maintained that he took out a razor, allegedly only one-inch long, intending only to scare Francis and get him to leave defendant alone. Francis testified that defendant initiated the conflict, and defendant testified that he drew the weapon only after Francis threw him up against a van and that he "accidently cut” Francis while struggling to free himself from a bear hug. Defendant, however, admitted on cross-examination that his written statement, made at the time of his arrest some 12 days after the date of the incident, is devoid of any assertion that the injury to Francis was accidental.

For the first time upon this appeal, defendant raises objections to certain comments made in the course of summation by the prosecution. The Trial Justice on two occasions gave curative instructions to the jury sua sponte, but no objection was raised with respect to the parts of the prosecutor’s summation challenged on this appeal. The issue is therefore not preserved for appellate review (CPL 470.05 [2]; People v Kolb,. 118 AD2d 590, 591, lv denied 67 NY2d 945). While some of the prosecutor’s remarks were intemperate and he was properly admonished by the court, both sides attacked the veracity of the other’s witnesses. In our view, defendant was fairly convicted and retrial is unwarranted (People v Galloway, 54 NY2d 396, 400-401). Concur—Kupferman, J. P., Ross, Ellerin, Wallach and Rubin, JJ.

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Bluebook (online)

161 A.D.2d 171, 554 N.Y.S.2d 559, 1990 N.Y. App. Div. LEXIS 4870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-stoll-nyappdiv-1990.

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