People v. Pryor , 417 N.Y.S.2d 490 ( 1979 )

— Judgment, Supreme Court, Bronx County, rendered March 8, 1978, after a jury trial convicting the defendant of the crime of robbery in the first degree (two counts), reversed, on the law and as a matter of discretion in the interest of justice, and the matter remanded for a new trial. The defendant, Danny Pryor, participated together with two others in an armed robbery of the Twilight Lounge in The Bronx. Pryor’s defense was that he was forced by the two others to participate in the crime. The dissent views the defense interposed as tenuous; however, we are reversing and remanding for a new trial because of cumulative errors which occurred. Defendant, though he may be ultimately found guilty, is entitled to a fair trial. We cannot say with the certainty of the dissent that there is no significant probability that, had the cumulative errors not occurred, defendant would not have been acquitted (see People v Crimmins, 28 NY2d 407, 412). The major error committed was in instructing the jury about the defense of duress. Subdivision 1 of section 40.00 of the Penal Law defines the defense as arising when a "defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable ñrmness in his situation would have been unable to resist” (emphasis added). The court instructed the jury that to find that the defendant acted under duress they must find that "the compulsion must be present and immediate and of such a nature as to induce a well-founded fear of impending death or serious bodily injury.” The standard imposed by Trial Term is a more stringent one than required by statute and is based on section 859 of the old Penal Law. Though counsel for the defendant did not object to this instruction, we, as a matter of discretion in the interest of justice, find that this error deprived the defendant of a fair trial (CPL 470.15, subd 6, par [a]). Additional error crept in during the course of the trial. During the examination of character witnesses, defense counsel was erroneously precluded from inquiring whether defendant lacked a bad reputation (People v Malinowski, 43 AD2d 189). On cross-examination of another character witness, the District Attorney, over defendant’s objection, asked the witness whether he would change his mind if he knew that the defendant had committed the present robbery. We have recently held this type of question improperly assumes that the defendant was guilty of the crime with which he is charged, and is one which should be avoided (People v Lopez, 67 AD2d 624). These errors regarding the examination of the character witnesses are most critical in the case at bar, since defendant had no prior record of either juvenile or adult offenses, and had a generally creditable background. The character evidence, if fully developed at trial and believed by the jury, could have created a doubt as to the truthfulness of the positive evidence presented sufficient to warrant acquittal (People v Miller, 35 NY2d 65). Furthermore, the jury may have been swayed by comments of the prosecutor complaining that all the defendant had to do was to get one juror "second-guessing” and there would be no verdict, and inferring that the defendant grew up in a neighborhood where he could not easily be the subject of intimidation or duress. We find that these cumulative errors deprived the defendant of a fair trial and create a significant probability that, had they not taken place, defendant may have been acquitted. We have therefore directed a new trial. Concur—Murphy, P. J., Sandler, Lane and Markewich, JJ.