People v. Osuna

Fein, J. (dissenting).

“The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right.” (People v Crimmins, 36 NY2d 230, 238.) In my view the defendant did not receive a fair trial. 111 recognize that in view of the recantation by the sole identifying witness it was probably necessary for the Assistant District Attorney to testify. However, his testimony, as described in the concurring opinion of Justice Carro, plainly exceeded proper bounds. The use of the rambling narrative form was inappropriate and the testimony quoted by Justice Carro plainly and prejudicially pitted the honesty and integrity of the_ District Attorney and his staff against defendant and the recanting witness. Cross-examination was impossible (People v Paperno, 54 NY2d 294, 301). H Albeit such error might be deemed harmless (People v Crimmins, supra, at p 239 et seq.), there was more. As stated in the court’s memorandum for affirmance, there was plain error when, over timely objection, hearsay evidence was received that defendant’s sister, when she observed him in custody, said: “Oh, no, not again. What did you do this time?” I am not persuaded by the speculation that the jury understood this as a reference to some prior youthful *722mischief rather than as prejudicial inference of a prior uncharged crime. It was patently offered solely to raise an inference of prior criminality and should have been excluded. The prejudice is manifest (People v Schwartzman, 24 NY2d 241, 247; People v Mullin, 41 NY2d 475, 479). The failure to sustain the defense objection or to give a curative instruction was prejudicial in the extreme (see People v Ashwal, 39 NY2d 105, 111). 11 In my view the combination of these errors in this single witness identification case denied defendant a fair trial and was not merely “harmless error” (see People v Crimmins, supra, at p 237 et seq.). There is a reasonable possibility that these errors in combination were so substantial as to deny defendant a fair trial and to have contributed to his conviction. Accordingly, they were not harmless (People v Crimmins, supra, at p 242). 11 There should be a reversal and a new trial.