Opinion
April 17, 1972
Judgments of the Supreme Court, Queens County, rendered December 3, 1970, affirmed. No opinion. Latham, Christ, Brennan and Benjamin, JJ., concur; Martuscello, Acting P.J., dissents and votes to reverse the judgments and to grant a new trial, with the following memorandum: As part of the People's case, the prosecutor read into the record the defendants' testimony before the Grand Jury. On summation he asked the trial jury to read this Grand Jury testimony and ask themselves, "Does any one of these records ring true? It is a pack of lies. They got before the Grand Jury and lied and the Grand Jury didn't believe them and the proof of that nonbelief is the indictment." He later referred to "this pack of lies that did not fool the Grand Jury and surely will not fool you" and asked the trial jury, "Are you going to take for fact what the Grand Jury in essence said were lies? * * * What have they proved? What they have done is rehash the same old fabrication, the same old lies that got them indicted." I view this as asking the trial jury to reject defendants' Grand Jury testimony because the latter body had already done so, and to reject defendants' trial testimony for the same reason, since it was merely a rehash of the same lies which the Grand Jury did not believe. I find these remarks to have exceeded the bounds of proper comment and that they were highly inflammatory and prejudicial to defendants. In my opinion, a new trial is required in the interests of justice.