People v. Burney , 244 N.Y.S.2d 1012 ( 1963 )

Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: The verdict of the jury was against the weight of the evidence. Reversal is also required because of the prejudicial and inflammatory remarks of the District Attorney during the summation. The effect of his injection of race and color into the ease was unwarranted and improper. “The vice of such an argument is not only that it is predicated on a false and illogical premise, but more important it is divisive; it seeks to separate the racial origin of the witnesses in the minds of the jury, and to encourage the weighing of testimony on the basis of the racial similarity or dissimilarity of witnesses. The argument offends the democratic and logical principle that race, creed or nationality, in themselves, provide no reason for believing or disbelieving a witness’ testimony. Hence, any judgment rendered following such offensive argument during summation must be set aside.” (People v. Hearns, 18 A D 2d 922, 923; see, also, People v. Burris, 19 A D 2d 557.) (Appeal from judgment of Onondaga County Court convicting defendant of violation of subdivision 5 of section 690 of the Penal Law [sodomy-felony],) Present — Williams, P. J., Goldman, McClusky, Henry and Noonan, JJ.