People v. Balls

Mahoney, P. J.,

dissents and votes to reverse in the following memorandum. Mahoney, P. J. (dissenting). While the majority concedes that "[t]he principal issue before us is whether the prosecutor’s comments during summation were so egregious as to have deprived defendant of a fair trial”, and concludes that while several comments attributed to the prosecuting attorney were inappropriate, such comments "in the context of the entire summation and the overwhelming evidence of guilt * * * were harmless error and did not render the trial unfair”, it failed to identify the one comment which, when juxtaposed to the other inappropriate statements, enlarged the totality of prosecutorial error to a level that compels me to conclude that defendant was deprived of a fair trial.

Dr. David Krischer was the senior pediatric resident on call in the emergency room at Albany Medical Center when the infant was admitted to that hospital. When Krischer was unsuccessful at resuscitating the child, he pronounced her dead. At trial, Krischer testified that he believed the cause of death was sudden infant death syndrome. However, when he later observed the child after an autopsy had been performed revealing the skull fractures, Krischer testified that he decided "[i]t was obviously not SID, sudden infant death”. Yet, the District Attorney stated to the jury in his summation: "Dr. Krischer told you he declared it to be crib death. When he came in the autopsy and he saw these injuries he immediately changed his diagnosis: homicide” (emphasis supplied). Krischer never made such a diagnosis nor did he so testify. Where, as here, a defendant is on trial for the crime of manslaughter for the death of his own child, and the prosecutor falsely tells the jury that an expert medical witness diagnosed the cause of death as "homicide”, the prosecutor wrongfully withdraws from the jury’s consideration its duty of resolving the factual question of who and what caused the infant’s demise. Such a deliberate statement, in my view, denies a defendant a fair trial. I would reverse the judgment and remit the matter for a new trial (see, People v Wright, 41 NY2d 172; People v Ashwal, 39 NY2d 105).