Summary
In Behling, the prosecutor had argued in summation that the co-defendant had made statements implicating the defendant in the crime, but had failed to advise the jury that the co-defendant had recanted those statements some time after making them.
Summary of this case from People v. EncarnacionOpinion
Argued December 9, 1969
Decided January 7, 1970
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOHN R. STARKEY, J.
Stephen F. Harmon for appellant.
Eugene Gold, District Attorney ( William I. Siegel of counsel), for respondent.
A hearing solely to determine defendant's or his lawyer's knowledge of the codefendant's recantation would not yield a decisive result. Regardless of whether defendant or his trial lawyer knew of the former codefendant's recantation of statements involving defendant in the instant crime, it was not permissible for the prosecutor to advise the jury in summation that the codefendant had so implicated defendant without also advising them of the recantation. Nor is the impropriety made the less because the prosecutor may have believed the codefendant's recantation to be false and a maneuver either to avoid giving testimony or to avoid being thought disloyal to the defendant (see People v. Ahmed, 20 N.Y.2d 958, 960). Consequently, a new trial is required.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.
Judgment reversed and a new trial ordered.