People v. Brooks

Titone, J. P.,

concurs in the result, with the following memorandum: I fully agree with the reasons given by my colleagues for reversal of defendant’s conviction for murder in the second degree and robbery in the first degree. Under the circumstances, the action of Detective Brennan in importuning defendant to relate the details of the robbery by indicating that a search warrant was being obtained to search the home of defendant’s sister for the murder weapon, was highly improper and clearly violated defendant’s right to remain silent on advice of counsel. However, I am also of the opinion that prejudicial and reversible error was committed by the prosecutor by his cross-examining defendant and an alibi witness on their failure to advise either the police or the District Attorney’s office of an alibi defense at the time of arrest and prior to trial. Furthermore the prosecutor compounded such error by alluding to these matters at length during summation. Such tactics may not be used by a prosecutor as a means of discrediting either the accused or an alibi witness, either upon cross-examination or during the People’s summation, and may be grounds for reversal of a conviction and the granting of a new trial (see People v Hamlin, 58 AD2d 631; People v Smoot, 59 AD2d 898). Although defense counsel failed to object to such actions of the prosecutor, because of their prejudicial nature I believe that in the interest of justice they are also grounds for reversal (see CPL 470.15, subd 6).