People v. Arroyo

Judgment, Supreme Court, Bronx County, rendered March 15, 1979, convicting defendant, on jury verdict, of assault in the second degree (Penal Law, 8120.05, subd 2), and sentencing him as a second violent felony offender to a term of imprisonment of 3V2 to 7 years, is affirmed. The Trial Judge was justified in finding that the victim could not “with due diligence” be found (CPL 670.10, subd 1), and thus permitting the use of the transcript of the victim’s testimony from the preliminary hearing. The opportunity for cross-examination and the actual cross-examination at the preliminary hearing were adequate, as was the identification of the defendant. The most serious questions in the case arise by reason of the Assistant District Attorney’s improper and intemperate remarks on summation. Some of these remarks were innocuous or obvious, e.g., the possibility that the victim might have been killed. Again the remark about the police officer, though obviously improper, added almost nothing; the testimony of the victim — the obvious informant — including cross-examination at the preliminary hearing shortly thereafter was read to the jury. Some of the District Attorney’s remarks were in response to defendant’s attorney’s summation. Other remarks of the District Attorney were more serious and quite unjustified. The most serious was the suggestion that the absence of the victim at the trial may have been due to threat by the defendant. (In fact it seems quite clear that the absence was due to the victim’s feeling of friendship for defendant.) We would agree with the dissenting Justice that these remarks would require a reversal but for the following circumstances: (a) The Trial Judge promptly gave pointed and effective curative instructions, repeated them in his charge, and then repeated them again in an addition to the charge, (b) There was no motion for a mistrial, (c) The defendant’s guilt was absolutely clear and almost uncontested, the defense consisting essentially of just emphasizing the victim’s absence from the trial. Concur — Ross, J. P., Lupiano, Silverman and Yesawich, JJ.