People v. Farmer , 505 N.Y.S.2d 683 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered January 17, 1983, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.

On the night of March 13, 1981, the complainant, Joseph Ravenell, suffered two gunshot wounds during the course of a fight with an uninvited intruder at a birthday party for his girlfriend. There were no witnesses, other than the complainant, to the shooting which occurred on the street outside of the apartment house in which the party was held. The defendant was arrested about 10 months later, based upon an on-the-street identification by Ravenell. According to Ravenell, however, he had spotted his assailant in the neighborhood on two other occasions during the intervening period, but had been unsuccessful in securing his apprehension by the police.

Ravenell claimed that he had given no description of his assailant to the police at the time of the incident. According to two police officers who testified for the defense, however, Ravenell had told them during interviews on the night of the shooting and about a week thereafter that his assailant’s name was Leroy. He also had provided an address where Leroy could be found. One of the officers testified that he went to that location but was informed that no such person lived there. At trial, Ravenell denied having told the police that his assailant’s name was Leroy, claiming instead that the police had told him that they had been given that name by a female who had been at the party. Ravenell admitted being acquainted with someone named Leroy, but insisted that that person was not the individual who had shot him.

In addition to Ravenell’s testimony, the prosecution also produced Ravenell’s girlfriend, Lenore James, and her sister, Lenora. Although both witnesses had viewed a lineup some 13 months after the shooting only Lenora James was able to identify the defendant as a man whom she had seen at the party on the night of the shooting. Lenore James, on the other hand, who claimed she had witnessed the fight between Ravenell and his assailant, which had lasted for over 20 minutes and moved from inside the apartment out to the sidewalk, was unable to identify the defendant either at the lineup or later at trial as her boyfriend’s assailant. Neither witness saw the actual shooting, although Lenore James testified that she had watched the altercation up to the point where she saw the unknown man run away after Ravenell stopped punching him.

Aside from the previously mentioned testimony of the two police officers regarding Ravenell’s identification of his assailant as someone named Leroy, the defendant also presented an alibi defense. Both he and his wife testified that he was at home on the night of the shooting, except for a possible trip to the grocery store early in the evening. Their recollection of the events was heightened by the fact that at the time the defendant’s wife was five days overdue for the birth of one of their children and was waiting to go to the hospital.

On appeal, the defendant argues that the People failed to prove his guilt beyond a reasonable doubt and, among other things, points to the weaknesses in the proffered identification testimony. While there are indeed a number of flaws in the testimony of the prosecution witnesses, upon viewing the evidence in the light most favorable to the People, we find that it was sufficient to permit a rational trier of facts to find the defendant guilty of the crimes charged (see, People v Contes, 60 NY2d 620).

The defendant also asserts that certain improper comments of the prosecutrix made during summation combined to deprive him of a fair trial. Specifically, he points out that, over objection, the prosecutrix was permitted to argue to the jury that there were two possible defenses, "honest mistaken identification” or "that Joseph Ravenell is intentionally lying to you, he is intentionally pointing the finger at the wrong man because, after all, he told the police Leroy did it, so he must be intentionally lying”. The defendant argues that the prosecutrix continued to dwell on this theme during summation, asking the jury what reason Ravenell would have to lie and to seek to frame the defendant. The defendant also claims that the prosecutrix improperly vouched for the credibility of her witnesses, contending that they told what they saw and they told the truth, and that on two separate occasions she referred to the defendant’s "so-called” alibi defense.

We recognize that in certain cases improper comments by a prosecutor may be rendered harmless by the overwhelming evidence of guilt and will therefore not warrant reversal and direction of a new trial (see, People v Galloway, 54 NY2d 396). However, in a closely contested prosecution such as was involved here where the crux of the case revolved around the identification testimony of the complainant, improper comments by a prosecutor may serve to deprive a defendant of a fair trial despite the legal sufficiency of the evidence. Thus, we have repeatedly held that comments which indicate to the jury that in order to acquit the defendant they must find that the complainant lied, are improper and prejudicial. They divert the jury’s attention from the issue of identification and tend to shift the burden of proof with respect thereto to the defendant (People v Williams, 112 AD2d 177; People v Ball, 77 AD2d 625; People v Webb, 68 AD2d 331). Similarly, numerous cases have pointed out the impropriety of a prosecutor’s vouching for the truthfulness of his own witnesses (People v La Rosa, 112 AD2d 954; People v Arcarola, 96 AD2d 1081), or denigrating an alibi defense (People v La Rosa, supra; People v Torres, 111 AD2d 885).

At bar, the identification and arrest did not occur until nearly one year after the incident and there was evidence that the complainant initially identified another individual as his assailant. Of two principal prosecution witnesses other than the complainant, one identified the defendant only as someone she had seen at the party over one year earlier, while the other, despite having watched an extended altercation between her boyfriend and his alleged assailant, could not identify the defendant as that man. Under these circumstances, the evidence of guilt can hardly be considered overwhelming and, accordingly, it was all the more crucial that the jury not be prejudiced in its evaluation of the identification evidence. Upon the circumstances here present, we conclude that the cumulative effect of the numerous improper comments by the prosecutrix cannot be deemed harmless (see, People v Crimmins, 36 NY2d 230), and served to deprive the defendant of a fair trial (see, People v Williams, supra).

We have reviewed the defendant’s remaining contentions and find them to be without merit.

Under the circumstances, a new trial is required. Gibbons, J. P., Brown and Eiber, JJ., concur.