People v. Carborano
92 N.E.2d 871
NY
1950
Check Treatment
Fuld, J.

Carborano was convicted of two crimes of grand larceny in the first degree. In affirming, the Appellate Division did so under section 542 of the Code of Criminal Procedure, thereby recognizing that errors had been committed. We agree that the record contained sufficient evidence to have warranted a verdict of guilt, but not that the errors failed to affect defendant’s substantial rights.

By suggestion and insinuation, the assistant district attorney who tried the case created the false impression that the defend*42ant at the time of his arrest was in possession of stolen property in addition to that charged against him (see People v. Harvey, 235 N. Y. 282, 294-295; People v. Loomis, 178 N. Y. 400, 403); that he had been previously convicted of or, if not convicted, arrested for the crime of receiving stolen property (see People v. Slover, 232 N. Y. 264, 268; see, also, People v. Perry, 277 N. Y. 460, 466-467); that he had been responsible for the falsification of testimony by one of the People’s witnesses by intimidating him or otherwise instilling fear in him (see People v. Pignataro, 263 N. Y. 229, 236-237; People v. Buzzi, 238 N. Y. 390, 397-398; cf. People v. Marino, 288 N. Y. 411, 418); that he was guilty because he had refused to answer questions put to him by the police when taken into custody (see People v. Abel, 298 N. Y. 333, 335; People v. Mleczko, 298 N. Y. 153, 160; People v. Pignataro, 263 N. Y. 229, 236, supra); and that he had deliberately refrained from calling witnesses, some of whom were outside of the State, because he realized that their testimony would implicate him (see People v. Sharp, 107 N. Y. 427, 465; cf. People v. Manning, 278 N. Y. 40, 43).

Here was no isolated instance of error, but rather a persistent disregard of rules of law designed to safeguard the substantial rights of an accused. Though there may be “no yardstick to measure error and differentiate between the technical and the substantial” (People v. Mleczko, 298 N. Y. 153, 162, supra), and while we may not be able to say with certainty that, absent the errors remarked, the verdict would have been one of acquittal, we may say with some assurance that the repeated improprieties had a decided tendency to blur the issue for decision and to prejudice the jury. (See People v. Tassiello, 300 N. Y. 425; People v. Mleczko, 298 N. Y. 153, 162, supra; People v. Posner, 273 N. Y. 184, 190; People v. Sobieskoda, 235 N. Y. 411, 420; People v. Marendi, 213 N. Y. 600, 619-620.) In a very real sense, therefore, the defendant was deprived of his right to a fair trial, a trial neither colored nor influenced by irrelevant matters likely to mislead or confuse the jury. (See People v. Tassiello, 300 N. Y. 425, supra.)

Nor can a court’s instructions to jurors to dismiss from mind matters improperly brought to their attention always assure elimination of the harm already occasioned. (See, e.g., People *43v. Robinson, 273 N. Y. 438, 445-446.) If it did, then the prosecution would be in a position to violate the rules of fair conduct with impunity, secure in the thought that the verdict, if one of guilt, would not be upset as long as the judge simply directed the jury to disregard what had occurred. The decision in each case as to whether the trial was fair or unfair, whether the error was harmless or prejudicial, must of necessity depend upon the nature of the proof adduced and upon, the type of error committed. In the present case, while the court may have corrected some of the improprieties, neither its instructions nor its admonitions could possibly have cured the prejudice resulting from their commission.

The judgments should be reversed and a new trial ordered.

Loughran, Ch. J., Lewis, Conway and Desmond, JJ., concur with Fuld, J.; Dye and Froessel, JJ., dissent and vote for affirmance under section 542 of the Code of Criminal Procedure.

Judgments reversed, etc.