New York Criminal Attorney Blog

The Appellate Division of the Supreme Court, Second Department unanimously overturned a Murder conviction from Nassau County because the trial Court committed a series of errors which combined to deny the defendant a fair trial. In People v. Terraine Slide the Court ruled that permitting the prosecutor to ask the defendant about his prior arrests for Marijuana and Shoplifting without giving a “limiting instruction” combined with additional errors deprived the defendant of a fair trial. Generally, a prosecutor may only use prior bad acts to cross-examine a defendant for the limited purpose of impeaching the defendant’s credibility. The jury is generally instructed that they may consider the evidence only for that limited purpose and not to show a propensity by the defendant toward committing crimes.

In addition, Judges are required to hold a Sandoval hearing prior to trial to determine what if any prior bad acts may be used to cross-examine the defendant. The concern is that jurors will hear about a defendant’s criminal record and convict him based upon his record and not the evidence of guilt.

In the Slide case, the prosecutor asked the defendant about his mother’s incarceration which was clearly irrelevant and which tended to insinuate that he had a genetic predisposition to commit crimes. Although a motion for a mistrial was made, it was denied by the trial Court.

In a unanimous ruling, issued yesterday and reported on the front page of today’s New York Law Journal, the Appellate Division unanimously revered the conviction of a carjacker who had been sentenced to 5 1/2 years in prison because of repeated, improper comments made to a criminal defense lawyer in front of the jury. Judge Neary, who spent 28 years as a Westchester County Assistant District Attorney before becoming a judge was recently transferred from Westchester to the Bronx Court. The case in question stemmed from a trial in the Bronx.

Judge Neary, according to the Appellate Court decision referred to the defense attorney’s line of questioning at one point in the trial as “silly” and “irrelevant”. During summation, Judge Neary at one point told the defense attorney “you are turning this into a comedy and its not.”

“Most egregiously, however, when defense counsel objected during the People’s summation, the court did not merely overrule the objection, but stated: ‘Would you please behave like a professional, please and not like a clown.’ “People v. Leggett, 2869 3401/07, NYLJ 1202472024104 at 4 (App. Div. 1st, Decided September 14, 2010).