Summary
granting new trial due to prosecutorial misconduct, including, inter alia, asking the defendant if the complainant was lying
Summary of this case from Daley v. ArtusOpinion
June 5, 1995
Appeal from the Supreme Court, Queens County (Harbater, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant contends that the hearing court erred by failing to suppress evidence of an impermissibly suggestive identification of him by the complainant. This contention is without merit. The complainant spontaneously identified the defendant to approaching police officers as the defendant fled from the scene of the crime, and the defendant was apprehended less than a minute later (see, People v. Duuvon, 77 N.Y.2d 541, 546 [identification spontaneously made by the pursuing complainant was not a police-arranged showup]; see also, People v. Anekwe, 151 A.D.2d 585).
We conclude, however, that the judgment of conviction must be reversed due to several instances of prosecutorial misconduct. Over defense counsel's objections, the prosecutor, inter alia, asked the defendant if the complainant was lying (see, e.g., People v. Davis, 112 A.D.2d 722; People v. Santiago, 78 A.D.2d 666), cross-examined the defendant's character witness about her personal knowledge of the facts underlying the defendant's previous conviction (see, People v. Kennedy, 47 N.Y.2d 196, 206), and failed to establish a good-faith basis for his questions concerning an alleged threat made by the defendant's father. In addition, the prosecutor, in his summation, failed to stay within "`the four corners of the evidence'" (People v. Ashwal, 39 N.Y.2d 105, 109). Since the cumulative effect of these errors deprived the defendant of a fair trial, he is entitled to a new trial (see, e.g., People v. Parker, 178 A.D.2d 665; see also, People v Crimmins, 36 N.Y.2d 230, 237-238). In view of the foregoing, we need not address the defendant's remaining contentions. Balletta, J.P., O'Brien, Altman and Krausman, JJ., concur.