People v. Torres, 223 A.D.2d 741 (N.Y. App. Div. 1996). · Go Syfert
People v. Torres, 223 A.D.2d 741 (N.Y. App. Div. 1996). Cases Citing This Book View Copy Cite
15 citation events (14 in the last 25 years) across 2 distinct courts.
Strongest positive: People v. Belton (nyappdiv, 2016-10-12)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Belton
N.Y. App. Div. · 2016 · confidence medium
Accordingly, the evidence supported the court’s determination that the complainant’s subsequent identification at the precinct was merely confirmatory of her initial identification, and that the defendant was thus not subjected to an impermissibly suggestive identification procedure (see People v Dixon, 85 NY2d 218, 223-224 [1995]; People v Benjamin, 2 AD3d 740, 741 [2003]; People v Torres, 223 AD2d 741, 742 [1996]; People v Wilkins, 190 AD2d 874, 875 [1993]).
discussed Cited as authority (rule) People v. Sheehan
N.Y. App. Div. · 2013 · confidence medium
While we agree with the defendant that certain of the prosecutor’s remarks during summation improperly denigrated defense counsel {see People v Davis, 39 AD3d 873, 875 [2007]; People v Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury {see People v Rayford, 80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; People v DeFigueroa, 182 AD2d 772, 773 [1992]), directing that t…
discussed Cited as authority (rule) People v. Sheehan
N.Y. App. Div. · 2013 · confidence medium
While we agree with the defendant that certain of the prosecutor’s remarks during summation improperly denigrated defense counsel {see People v Davis, 39 AD3d 873, 875 [2007]; People v Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury {see People v Rayford, 80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; People v DeFigueroa, 182 AD2d 772, 773 [1992]), directing that t…
discussed Cited as authority (rule) People v. Rios
N.Y. App. Div. · 2013 · confidence medium
While we agree with the defendant that certain of the prosecutor’s remarks during summation improperly denigrated defense counsel (see People v Davis, 39 AD3d 873, 875 [2007]; People v Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury (see People v Rayford, 80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; People v DeFigueroa, 182 AD2d 772, 773 [1992]), directing that t…
discussed Cited as authority (rule) People v. Rios
N.Y. App. Div. · 2013 · confidence medium
While we agree with the defendant that certain of the prosecutor’s remarks during summation improperly denigrated defense counsel (see People v Davis, 39 AD3d 873, 875 [2007]; People v Torres, 223 AD2d 741, 742 [1996]), we find that any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the objections of the defendant and his codefendant and provided prompt curative instructions to the jury (see People v Rayford, 80 AD3d 780, 781 [2011]; People v Alexander, 50 AD3d 816, 817 [2008]; People v DeFigueroa, 182 AD2d 772, 773 [1992]), directing that t…
discussed Cited as authority (rule) People v. Jean-Marie
N.Y. App. Div. · 2009 · confidence medium
Although the prosecutor’s remark regarding defense counsel was improper (see People v Torres, 223 AD2d 741, 742 [1996]), any prejudice that may have resulted from the remark was alleviated when the trial court sustained the defendant’s objection and provided a curative instruction to the jury (see People v Warren, 27 AD3d 496, 498 [2006]).
discussed Cited as authority (rule) People v. Warren
N.Y. App. Div. · 2006 · confidence medium
Although the prosecutor improperly shifted the burden of proof to the defendant by drawing attention to the defendant’s failure to call a witness his attorney had mentioned in his opening statement (see People v Walters, 251 AD2d 433, 434 [1998]), and also improperly denigrated defense counsel (see People v Torres, 223 AD2d 741, 742 [1996]), any prejudice that may have resulted from these remarks was alleviated when the trial court sustained the defendant’s objections and provided curative instructions to the jury (see People v Williams, 14 AD3d 519 [2005]).
discussed Cited as authority (rule) People v. Adamo
N.Y. App. Div. · 2003 · confidence medium
None of these attorneys has — no one has disputed the fact that these three individuals hung out in that schoolyard behind * * * [the complainant’s] house.” This misrepresented the trial record, which showed that defense counsel had disputed both of these facts when cross-examining the witness and, more importantly, improperly focused attention on the defendant’s failure to testify (see People v Torres, 223 AD2d 741, 742 [1996]; People v Brown, 91 AD2d 615, 616 [1982]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Anthony Torres
Appellate Division of the Supreme Court of the State of New York.
Jan 29, 1996.
223 A.D.2d 741
1996 N.Y. App. Div. LEXIS 634
Cited by 15 opinions  |  Published

Appeals by the defendant from (1) a judgment of the Supreme Court, Queens County (Cohen, J.), rendered September 29, 1993, convicting him of robbery in the second degree under Indictment No. 7209/91, upon a jury verdict, and imposing sentence, and (2) two amended judgments of the same court, both rendered December 10, 1993, revoking two sentences of probation previously imposed by the same court (Cohen, J., and Eng, J., respectively), upon a finding that the defendant had violated a[*742] condition thereof, after a hearing, and imposing sentences of imprisonment upon his previous convictions for assault in. the third degree under Indictment No. 5584/90 and attempted criminal sale of a controlled substance in the third degree under S.C.I. No. N10164/89. The appeal from the judgment rendered September 29, 1993, brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment rendered September 29, 1993, is reversed, on the law, and a new trial is ordered; and it is further,

Ordered that the amended judgments are affirmed.

The Supreme Court properly determined that the People’s failure to include the complainant’s identification of the defendant at the police precinct in their CPL 710.30 notice did not require preclusion of all identification testimony (see, People v Simmons, 221 AD2d 484). The precinct identification, which occurred approximately 10 minutes after the complainant had pointed out the defendant on the street, was merely confirmatory (see, People v Branigan, 207 AD2d 459; People v Wilkins, 190 AD2d 874). Further, the court properly concluded that the precinct identification was not unduly suggestive (see, People v Wilkins, supra).

However, several remarks made by the prosecutor during summation, which exceeded the bounds of proper advocacy and improperly shifted the burden of proof, deprived the defendant of his right to a fair trial. The prosecutor’s personal attacks on the defense counsel were improper (see, People v Kent, 125 AD2d 590, 591). Moreover, the prosecutor’s statements that there was no evidence in the case to indicate that the defendant was elsewhere on the date of the incident and "no other evidence that he was anywhere else except where [the complainant] says he was, robbing her” improperly focused on the defendant’s failure to testify and suggested that the defendant had an obligation to come forward with evidence explaining his whereabouts (see, People v Kent, supra, at 591).

The prejudice to the defendant was compounded when, upon overruling the defense counsel’s objections and denying her application for a mistrial, the court commented that the argument could be made and it was for the jury to accept or reject it (see, People v Kent, supra, at 591; People v Brown, 91 AD2d 615, 616). While a prompt corrective instruction may have cured the prejudice, the court’s subsequent instruction in its final charge did not do so (see, People v Brown, supra, at 615). We do not find the error to be harmless.

[*743] In light of our determination, it is unnecessary to address the defendant’s remaining contentions regarding the admissibility of certain evidence and the sentence imposed for his conviction of robbery in the second degree.

The prosecutorial misconduct does not, however, require reversal of the amended judgments entered on the defendant’s previous convictions for his violation of two sentences of probation. The court held a hearing and made an independent finding that the defendant was guilty of a violation of probation in each of those cases (compare, People v Clark, 45 NY2d 432; People v Smith, 163 AD2d 210). Because we are reversing the defendant’s conviction for robbery in the second degree, it is unnecessary to address his contention that it was unduly harsh to run the concurrent sentences imposed for the two violations of probation consecutive to the sentence imposed on the robbery conviction. The sentences imposed pursuant to the amended judgments were not otherwise excessive (see, People v Suitte, 90 AD2d 80). Santucci, J. P., Altman, Friedmann and Goldstein, JJ., concur.