58 A.D.2d 631 | N.Y. App. Div. | 1977
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 18, 1975, convicting him of rape in the first degree, robbery in the first and second degrees and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. In our opinion, the defendant-appellant was denied a fair trial by the persistent and improper efforts of the prosecutor to discredit the testimony of two of his alibi witnesses. We also believe, in connection with such prosecutorial conduct, that the trial court committed reversible error in allowing it to continue and then giving it credence in the charge to the jury. At the trial, the complaining witness testified that shortly after 7:00 p.m. on February 21, 1975, defendant accosted her while she was entering her car, robbed her, forced her to the ground, and then raped her. Four alibi witnesses, including defendant’s brother, Billy Hamlin, and an acquaintance of defendant, Jimmy Burden, testified that at the time the alleged crime was committed, defendant was playing cards in the office of a junkyard. During the cross-examination of Billy Hamlin, the witness was asked whether he had refused to answer questions addressed to him by the prosecutor earlier in the witness room as to what had happened on February 21 1975. Although the trial court advised the jury that the witness was under no obligation to answer such questions, it overruled defense counsel’s objection and permitted the prosecutor to continue. During the cross-examination of Jimmy Burden, the prosecutor questioned him extensively about his failure to respond to a subpoena to appear in the District Attorney’s office relative to the case. The trial court also overruled an objection to this line of interrogation. The thrust of the prosecutor’s argument on summation about Hamlin’s and Burden’s alibi testimony was that both of their stories