People v. Brown

Thompson, J., dissents and votes to affirm both judgments, with the following memorandum:

Defendant stands convicted on Indictment No. 166/78 of robbery in the second degree and grand larceny in the third degree based upon an incident in which two perpetrators forcibly took food stamps from Kevin Burnside. One perpetrator held Burnside’s arms while the second actor went through his pockets, I am in agreement with the majority that evidence of guilt beyond a reasonable doubt was adequately established at trial despite troubling conflicts in the stories of Burnside and Bruce Lawrence, a witness to the crime. Both witnesses unequivocally identified defendant as one of the two perpetrators, despite their inability to agree on whether he was the arm holder or the pocket searcher. Despite the absence of overwhelming proof of guilt, I am unable to vote for a reversal because I simply do not believe that defendant was deprived of a fair trial. There was no Trowbridge error in this case and the prosecutor’s remarks were properly monitored by the court. Accordingly, I respectfully dissent. Burnside testified that four days after the crime he saw defendant in the lobby of a police building and informed Officer Franconeri of this. In his very brief testimony, Franconeri testified that he saw defendant in *641the lobby, had a conversation with Burnside five minutes thereafter, and then arrested defendant. All of the foregoing was not objected to. This testimony was elicited solely to provide the jury with the background leading to defendant’s arrest. Franconeri’s testimony was in no way directed towards bolstering Burnside’s previous identification testimony, and in essence simply repeated Burnside’s already admitted testimony. Franconeri never even testified as to what Burnside told him. Defense counsel’s own words best summarize the impact of Franconeri’s testimony: “that the police officer merely testified relative to the fact that [defendant] was arrested. I submit that he didn’t contribute anything really significant to this case.” This case simply has nothing to do with the evils of improper bolstering, and Trowbridge is now being used in a situation in which its applicability has no basis in either logic or law. In his opening statement defense counsel stated that he would produce two witnesses who would testify that defendant was present at the scene but did not participate in the robbery. Defendant rested without presenting any witnesses. During the prosecutor’s summation, the following transpired: “You heard a statement that proof was going to be given to you that Bruce Lawrence actually committed this crime, mr. brennan [defense counsel]: Objection, Judge, the court: Sustained, mr. brennan: Defendant doesn’t have to prove anything, the court: Sustained, mr. o’shea [Assistant District Attorney]: You heard counsel’s comments, the court: Disregard the statement made by the district attorney, jurors. It is your recollection of the evidence that counts, and no one else’s. MR. o’shea: You heard the opening statements. Hold me to my opening statement. Hold counsel to his opening statement, mr. brennan: Objection, Judge, the court: Sustained, mr. brennan: I would ask for an instruction to the jury, the court: Jurors, the defense doesn’t have to prove anything. The People must prove the guilt of this defendant beyond a reasonable doubt. In my charge to you I will instruct you on the law. Disregard the statements made to you by the Assistant District Attorney, Mr. O’Shea. Remove it from your mind. mr. o’shea: Did you hear any evidence whatsoever, whatsoever that Bruce Lawrence perpetrated this crime? mr. brennan: Objection, Judge, the court: Sustained, mr. brennan: I ask for an instruction, the court: Again, disregard anything the district attorney says about anything that may reflect upon the defense. The defense, again, has nothing to prove in this case. It is for the district attorney to prove this defendant guilty beyond a reasonable doubt, by the direct evidence of the district attorney, mr. brennan: Judge, I would ask the court to instruct the district attorney to not comment on my opening statement, which is not evidence, the court: Yes, Mr. O’Shea, disregard the opening statement made by Mr. Brennan, please.” In a situation in which objections were immediately sustained and perfect curative instructions were promptly given, and in the absence of a motion for a mistrial, I am at a complete loss to understand why the ill-advised and overzealous comments of the prosecutor constitutes reversible error. In summary, defendant received a fair trial, if not a perfect one. Accordingly, I vote to affirm the judgments.