People v. Lee , 55 A.D.2d 658 ( 1976 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 27, 1974, convicting him of criminal sale of a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree (two counts), upon a jury verdict, and imposing sentence. (We are aware that the trial court, at sentencing, erroneously referred to <the third count of the indictment as charging criminal possession of a dangerous drug in the third degree.) Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Whatever the merits of the case, it was prosecuted in such a manner that the defendant was not accorded a fair trial. Three specific instances were raised by defendant. Standing alone they might not warrant reversal, but cumulatively their effect was to unduly prejudice his rights. During jury selection the prosecutor informed the panel that the "Rockefeller program” of new drug laws did not apply to defendant. In effect, the statement conveyed the impression that defendant would be treated leniently if found guilty. Such a comment is impermissible. The jury has nothing to do with punishment. In the course of the trial itself, two police officers were indirectly qualified as expert witnesses when they spread their combined efficiency record for drug convictions on the record, to convey the obvious implication that Lee was guilty of the crime charged. Moreover, they were not called as experts. When Lee took the stand in his own defense, it was highly prejudicial for the prosecutor to comment on the 18 years he had served in prison. The prior conviction was relevant on the issue of credibility, but again the invidious implication that defendant was a person predisposed to sell drugs was manifestly unfair. These instances, when considered in light of the facts that Lee was arrested eight weeks after the consummation of a sale that took no longer than five minutes, that he vehemently protested his innocence, that he raised a serious question as to identity and that the jury was out for eight hours before bringing in a verdict, mandate reversal. Hopkins, Acting P. J., Margett, Cohalan, Rabin and Titone, JJ., concur.