80 A.D.2d 590 | N.Y. App. Div. | 1981
Appeal by defendant from (1) a judgment of the Supreme Court, Kings County, rendered May 18, 1977, convicting him of sodomy in the first degree and sexual abuse in the first degree, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered May 25, 1977, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence. Judgments reversed, on the law, plea vacated and cases remitted to Criminal Term for further proceedings consistent herewith. A new trial is necessary on the sodomy and sexual abuse charges because of prejudicial questions and comments made by the prosecutor which deprived the defendant of a fair trial (see People v Shanis, 36 NY2d 697; People v Brosnan, 32 NY2d 254, 261-262; People v Wallason, 62 AD2d 1026). During the trial, the prosecutor repeatedly called the defendant a “thief’, a “liar”, and characterized his behavior as that of an “animal in prey”, “a cat” and a “creature”. These comments clearly exceed the bounds of legitimate advocacy and only serve to prejudice the jury against the defendant (see People v Shanis, supra; People v Brosnan, supra; People v Billingsley, 74 AD2d 645; see, also, People v Butler, 57 AD2d 931; People v Petrucelli, 44 AD2d 58; People v Sarmiento, 40 AD2d 562). A new trial is required in this case despite the fact that guilt was proven beyond a reasonable doubt, because the denial of a fair trial to the defendant cannot be dismissed as harmless error (see People v Crimmins, 36 NY2d 230, 238; People v Rivera, 75 AD2d 544; People v Bennett, 65 AD2d 801). A reversal of the sodomy conviction also requires us to vacate the plea of guilty on the robbery charge. The plea on the robbery charge was conditioned on a negotiated agreement that the defendant would receive a sentence on the plea to be served concurrently with the sentence to be imposed as a result of the sodomy conviction. Therefore, to give effect to the plea commitment made by the trial court in this case the plea must be vacated (see People v Rogers, 48 NY2d 167; People v Clark, 45 NY2d 432; see, also, People v Schaaff, 77 AD2d 607; People v Miller, 76 AD2d 576). We also hold that the robbery conviction must be reversed and the plea vacated because the trial court induced the defendant to plea guilty by the explicit threat of a heavier sentence should he choose to proceed to trial (see People v Hollis, 74 AD2d 585, mot for lv to app den 49 NY2d 1004). We note that the trial court did not err in limiting the defendant’s cross-examination of
