People v. Gonzalez — 38 N.Y.2d 208

Majority

p. 208

The People of the State of New York, Respondent, v Angel Gonzalez, Appellant.

Argued November 17, 1975;

decided December 22, 1975

Lynn W L. Fahey and William E. Hellerstein for appellant.

I. Appellant was denied his right to confrontation when the prosecutor was permitted to suggest that appellant’s son had given an eyewitness account of the incident which was damaging to appellant’s self-defense claim, and that appellant had induced his son to enter the navy to make him unavailable as a witness. (Douglas v Alabama, 380 US 415 ; Farve v Hender

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son, 464 F2d 359 ; People v Mirenda, 23 NY2d 439 ; People v Carborano, 301 NY 39 ; Simmons v United States, 440 F2d 890 .) II. Appellant’s right to have the jury adequately consider his justification defense was abridged when the court refused tó give a charge on mistaken apprehension to which appellant was entitled and recharged the jury in such a manner as to suggest that that defense was without merit. (People v Ligouri, 284 NY 309 ; People v Governale, 193 NY 581 ; People v Taylor, 177 NY 237 .) III. Appellant was denied a fair trial by the court’s errors in (a) prohibiting the defense from using the prior inconsistent testimony of a key prosecution witness in cross-examining her, (b) admitting improper evidence about the pasts of both appellant and the deceased, and (c) admitting rebuttal testimony on a purely collateral matter. (People v Rosario, 9 NY2d 286 ; People v Sandoval, 34 NY2d 371 ; People v McKinney, 24 NY2d 180 ; People v Branch, 34 AD2d 541 , 27 NY2d 834 ; People v Rodawald, 177 NY 408 ; People v Webster, 139 NY 73 ; People v Flournoy, 14 AD2d 854 ; United States ex rel. Randazzo v Follette, 282 F Supp 2 , 444 F2d 625 ; People v De Garmo, 179 NY 130 .) IV. Persistent prosecutorial misconduct designed to prejudice appellant, inflame the jury, confuse the issues and unfairly surprise the defense was sufficient in itself to deny appellant a fair trial. (Berger v United States, 295 US 78 ; People v Steinhardt, 9 NY2d 267 ; People v Esposito, 224 NY 370 ; People v Mirenda, 23 NY2d 439 ; People v Stridiron, 33 NY2d 287 ; Malinski v New York, 324 US 401 ; People v Carborano, 301 NY 39 ; People v Lombardi, 20 NY2d 266 ; People v Tassiello, 300 NY 425 .) V. The circus-like atmosphere in which appellant was tried denied him his fundamental right to have a jury, acting calmly and dispassionately, determine his guilt or innocence solely upon the relevant evidence. (People v Steinhardt, 9 NY2d 267 ; People v Sepulveda, 45 AD2d 954 ; People v Setaro, 44 AD2d 847 ; People v Di Carlo, 242 App Div 328 .)

Mario Merola, District Attorney (Lawrence L. Ginsburg of counsel), for respondent.

I. Defendant’s guilt was established beyond a reasonable doubt. (People v Arata, 255 NY 374 ; People v Cohen, 223 NY 406 ; People v Regina, 19 NY2d 65 ; People v Becker, 215 NY 126 ; People v Seidenshner, 210 NY 341 ; People v Taylor, 138 NY 398 ; People v Sorge, 301 NY 198 ; People v Atlas, 183 App Div 595 , 230 NY 629 .) II. The conduct of the trial court was justified and did not deprive defendant of his right to a fair trial. (People v Marcelin, 23

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AD2d 368 ; United States v Ross, 321 F2d 61 ; People v Gowasky, 244 NY 451 ; People v Dixon, 231 NY 111 ; People v Gibson, 218 NY 70 ; People v Barnes, 202 NY 77 ; People v Ohanian, 245 NY 227 ; People v Steinhardt, 9 NY2d 267 .) III. Defendant was not deprived of his right to a fair trial by the rulings of the trial court. (People v Rosario, 9 NY2d 286 , 368 US 866 ; People v Ramistella, 306 NY 379 ; Langley v Wad-worth, 99 NY 61 ; People v Dinan, 15 AD2d 786 , 11 NY2d 350 ; People v Hernandez, 10 NY2d 774 ; People v Vidal, 26 NY2d 249 ; People v Buchanan, 145 NY 1 ; People v Regina, 19 NY2d 65 ; People v Fay, 270 App Div 261 ; People v De Renzzio, 19 NY2d 45 .) IV. No reversible error was committed by the prosecutor. (People v Castillo, 16 AD2d 235 ; People v Broady, 5 NY2d 500 ; People v Gowasky, 244 NY 451 ; People v Dixon, 231 NY 111 ; People v Gibson, 218 NY 70 .)

Memorandum. On this appeal, defendant, while contesting neither the weight, nor the legal sufficiency of the evidence adduced at trial, contends that numerous factors at trial mandate that the conviction be reversed. Specifically, defendant maintains that he was denied a fair trial by the “atmosphere” in the courtroom, the bias of the Trial Judge, various legal errors committed by the Trial Judge, and several instances of prosecutorial misconduct.

Although the trial court exhibited a certain degree of acrimony during the several heated exchanges with defense counsel, we must consider the context in which this occurred. Defendant’s trial lasted for approximately three weeks and was marked by aggressive advocacy on the part of both the defense and prosecution. Defense counsel, a retained attorney, persistently failed to obey proper evidentiary rulings and engaged in tactics designed to disrupt and to infuriate throughout the trial and summation. When such a situation is created by defense counsel, defendant may not, absent other circumstances, successfully allege he was deprived of a fair trial. The trial court was justified, indeed obligated, to assume aggressive control of the proceedings to ensure a fair trial (People v Marcelin, 23 AD2d 368 [Eager, J.]). Significantly, the prompt, curative instructions by the Trial Judge should have served to dispel any prejudice and to emphasize to the jury that their only concern was to assess the defendant’s guilt or innocence rather than the conduct of counsel or the court. Accordingly, we conclude that the trial court, under

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extraordinarily difficult circumstances, preserved the defendant’s right to a fair trial.

We find the other errors alleged by defendant to be without merit or not properly preserved. The order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.

Cases cited

Douglas v. Alabama 380 US 415 SCOTUS 1965-04-05 p. 208
People v. Mirenda 23 NY2d 439 N.Y. 1969-01-09 p. 209
People v. Carborano 301 NY 39 N.Y. 1950-05-25 p. 209
People v. Ligouri 284 NY 309 N.Y. 1940-12-04 p. 209
People v. Rosario 9 NY2d 286 N.Y. 1961-03-23 p. 209, p. 210
People v. Sandoval 34 NY2d 371 N.Y. 1974-06-19 p. 209
People v. McKinney 24 NY2d 180 N.Y. 1969-03-06 p. 209
People v. Branch 27 NY2d 834 N.Y. 1970-11-11 p. 209
Berger v. United States 295 US 78 SCOTUS 1935-04-15 p. 209
People v. Steinhardt 9 NY2d 267 N.Y. 1961-03-23 p. 209, p. 210
People v. Stridiron 33 NY2d 287 N.Y. 1973-12-28 p. 209
Malinski v. New York 324 US 401 SCOTUS 1945-03-26 p. 209
People v. Lombardi 20 NY2d 266 N.Y. 1967-07-07 p. 209
People v. Tassiello 300 NY 425 N.Y. 1950-04-13 p. 209
People v. Setaro 44 AD2d 847 N.Y. App. Div. 1974-05-20 p. 209
People v. Arata 255 NY 374 N.Y. 1931-02-10 p. 209
People v. Regina 19 NY2d 65 N.Y. 1966-12-30 p. 209, p. 210
People v. Sorge 301 NY 198 N.Y. 1950-07-11 p. 209
People v. Atlas 183 App Div 595 N.Y. App. Div. 1918-05-31 p. 209
Tri-Bullion Smelting & Development Co. v. Corliss 230 NY 629 N.Y. 1921-03-01 p. 209
People v. Gowasky 244 NY 451 N.Y. 1927-02-23 p. 210
People v. Ohanian 245 NY 227 N.Y. 1927-05-31 p. 210
People v. Ramistella 306 NY 379 N.Y. 1954-03-11 p. 210
Langley v. Wadsworth 99 NY 61 N.Y. 1885-04-14 p. 210
People v. Dinan 15 AD2d 786 N.Y. App. Div. 1962-02-05 p. 210
People v. Dinan 11 NY2d 350 N.Y. 1962-05-17 p. 210
People v. Hernandez 10 NY2d 774 N.Y. 1961-07-07 p. 210
People v. Vidal 26 NY2d 249 N.Y. 1970-03-05 p. 210
People v. De Renzzio 19 NY2d 45 N.Y. 1966-12-30 p. 210
People v. Castillo 16 AD2d 235 N.Y. App. Div. 1962-04-17 p. 210
People v. Broady 5 NY2d 500 N.Y. 1959-04-09 p. 210
People v. Marcelin 23 AD2d 368 N.Y. App. Div. 1965-06-15 p. 210