301 N.Y. 39 | NY | 1950
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
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
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.