People v. Herlan

Judgment reversed, as a matter of discretion in the interest of justice, and a new trial granted. Memorandum: Defendant was convicted following a jury trial of burglary in the third degree, criminal mischief in the fourth degree and possession of burglar tools arising out of a break-in of a restaurant during the early morning hours of August 10, 1981. During the prosecutor’s cross-examination of defendant, he repeatedly questioned defendant as to whether the police officers were lying when they testified contrary to defendant’s testimony. At one point, the prosecutor asked: “Oh, he was lying. Mr. Herlan, in your wisdom, why would a police officer of sixteen years risk his pension to peijure himself in court over you? Any reason?” On summation, the prosecutor made the same argument to the jury as to why a police officer would risk his pension rights by lying to convict this defendant. Such remarks by the prosecutor during summation compounded the prejudicial effect of this cross-examination of defendant as to whether the police officers had lied during their testimony. Defendant’s credibility was an important issue at trial. The jury had to decide whether to believe the police officers’ account of the incident or defendant’s claim that he was merely an innocent bystander, or at most, attempting to intervene on the side of the law. The repeated emphasis on defendant’s forced characterization of the officer witnesses’ testimony as lies served to deprive him of his right to a fair trial (People v Galloway, 54 NY2d 396; People v Ochoa, 86 AD2d 637; People u Santiago, 78 AD2d 666; People v Crossman, 69 AD2d 887; People v Goggins, 64 AD2d 717). Further, the trial court’s statement that “he [the defendant] claims that the police officers are lying” in instructions to the jury highlighted the unfortunate references, and its prejudicial effect on the jury should not be underestimated. Although no objections were made at trial, the record clearly indicates that the jury was affected by the charge. We therefore reverse the judgment of conviction as a matter of discretion in the interest of justice (see CPL 470.15, subd 6; People v Balkum, 94 AD2d 933). All concur, except Hancock, Jr., J. P., and Boomer, J., who dissent and vote to affirm, in the following memorandum.