People v. Diaz, 170 A.D.2d 202 (N.Y. App. Div. 1991). · Go Syfert
People v. Diaz, 170 A.D.2d 202 (N.Y. App. Div. 1991). Cases Citing This Book View Copy Cite
10 citation events (4 in the last 25 years) across 2 distinct courts.
Strongest positive: Davis v. City of New York (nysd, 2005-05-31)
Top citers, strongest first. 3 distinct citers.
discussed Cited as authority (rule) Davis v. City of New York
S.D.N.Y. · 2005 · confidence medium
U.S. v. Eichman, 756 F.Supp. 143, 147-49 (S.D.N.Y.1991) (entry into a building requires that the defendant “actually enter within the four walls or beneath the roof of a building”); People v. Diaz, 170 A.D.2d 202 , 565 N.Y.S.2d 101, 102 (1st Dept.1991) (“Trespassing on the roof and fire escape of an adjoining building ... cannot be defined as being ‘inside’ a building.”).
discussed Cited as authority (rule) People v. Spruill
N.Y. App. Div. · 2004 · confidence medium
Finally, the prosecutor’s remark that “I’m beginning to question whether I would have wanted my own children alongside [the defendant’s attorney]” amounted to a personal attack on defense counsel and was plainly out of bounds (see People v Diaz, 170 AD2d 202, 203 [1991], amended on other grounds 172 AD2d 341 [1991]; People v Rivera, 116 AD2d 371, 374 [1986]).
discussed Cited "see, e.g." People v. Sanchez
N.Y. App. Div. · 1994 · signal: see also · confidence low
Evidence that the defendant was in the building’s vestibule, and that he tampered with, but did not enter, a locked inner door, is insufficient to establish unlawful entry, because the evidence did not establish that the defendant, or any part of his body, was "inside” the locked entrance to the building (see, People v King, 61 NY2d 550, 552 ; see also, People v Diaz, 170 AD2d 202 ).
The People of the State of New York
v.
Juan Diaz, Also Known as Miguel Calimano, Also Known as Calimano Diaz
Appellate Division of the Supreme Court of the State of New York.
Feb 7, 1991.
170 A.D.2d 202
Cited by 9 opinions  |  Published

Judgment, Supreme Court, New York County (Albert Williams J., at hearing and sentence), rendered January 13, 1989, convicting defendant, after a jury trial, of burglary in the second degree, criminal trespass in the second degree and possession of burglar’s tools, and sentencing him, respectively, to concurrent terms of incarceration of 5 to 10 years as to the burglary count and one year each as to the trespass and burglar’s tools counts, unanimously reversed, on the law and as a matter of discretion in the interest of justice, the charge of burglary in the second degree reduced to attempted burglary in the second degree, and the matter remanded for a new trial.

Defendant argues, and the People concede, that the proof adduced at defendant’s trial was insufficient to prove that defendant "entered” or "remained” in the building in question within the meaning of Penal Law § 140.25 (2). To sustain a burglary conviction, it must be established beyond a reasonable doubt that the defendant knowingly entered or remained unlawfully in a building—in the case at bar a dwelling—with the intent of committing a crime therein. (Penal Law § 140.25 [2].) Trespassing on the roof and fire escape of an adjoining[*203] building, even assuming intent to commit a crime in the subject building, cannot be defined as being "inside” a building. (Compare, People v King, 61 NY2d 550, 554-555 [1984].) Thus, as the People candidly acknowledge, "since the areas of 450 West 55 Street on which he was trespassing were not inside that building, he could not be guilty of burglary, which requires that he enter or remain unlawfully in a building.” Accordingly, were it not for the fact that we are nevertheless remanding the matter for a new trial, we would be required to modify the judgment to reflect a conviction for the lesser included offense of attempted burglary, as a lesser included offense of burglary in the second degree. (See, GPL 470.15 [2] [b]; 1.20 [37]; People v Dlugash, 41 NY2d 725, 737 [1977].)

In the case herein, the prosecutor repeatedly mischaracterized the evidence and denigrated defense counsel. It is clearly improper for a prosecutor to lead the jury away from the issues before it and impugn the integrity of defense counsel. (See generally, People v Ashwal, 39 NY2d 105, 109-110 [1976]; see also, People v Rivera, 116 AD2d 371, 374 [1st Dept 1986]; People v Torriente, 131 AD2d 793, 794-795 [2d Dept 1987].) This is all the more true given that a prosecutor is an officer of the court and a representative of the People of the State of New York; thus, where as here, he makes personal attacks upon the credibility of defense counsel and interjects his own credibility and integrity into the case, referring, inter alia, to the defense theories as an "insult”, "absurd” and "desperate”, thereby suggesting that counsel was trying to deceive the jury, the insult is not to the jury, but rather to counsel, as well as to the criminal justice system (People v Lombardi, 20 NY2d 266, 272 [1967]; People v Gay, 63 AD2d 590 [1st Dept 1978]). We similarly express our displeasure at comments by the prosecutor which were personally denigrating to defendant, among them one to the effect that defendant was the "best dressed homeless man I’ve ever seen.”

Additionally, the prosecutor made various inappropriate and burden-shifting comments attacking defendant’s reliance upon rights which are constitutionally guaranteed, i.e., the presumption of innocence, the standard of proof beyond a reasonable doubt and the right to a trial. The dilution of defendant’s exercise of these constitutional rights constitutes error. (See, People v Kent, 125 AD2d 590, 591 [2d Dept 1986].)

Many of the comments complained of in defendant’s brief on appeal were objected to, some successfully, some not; others passed without objection. A reversal for a new trial is nevertheless required, for, to quote Justice Ross, "[t]he cumulative[*204] effect of these errors was to effectively deny defendant a fair trial.” (People v Dowdell, 88 AD2d 239, 248 [1st Dept 1982]; accord, People v Thompson, 167 AD2d 161 [1st Dept 1990].) Concur—Murphy, P. J., Sullivan, Carro, Ellerin and Smith, JJ. [See, — AD2d—(Apr. 18, 1991).]