Opinion
May 18, 1971
Appeal by the defendant from a judgment of conviction of the County Court of Ulster County, rendered March 9, 1970, upon a jury verdict of guilty of the crimes of murder and arson in the second degree. The record establishes without dispute that on or about July 1, 1969 a woman was murdered and that the defendant and one Trammell were the only persons present with the deceased at the time of her death. The happening was discovered when firemen were summoned to extinguish a fire which had been started by the defendant or Trammell and the body of the woman was found. An autopsy performed disclosed that the woman had died due to strangulation and a fractured larynx. As a result of the information furnished the police, the defendant was brought to headquarters, advised of his rights and in the course of questioning, admitted strangling the woman and starting the fire. There is no issue as to the voluntariness of the confession or of the defendant being advised of his right to counsel. He testified at the trial admitting to the confession, but offered testimony as to the reason for giving the same. Prior to the trial and while in jail the defendant changed his story, accusing Trammell of having committed the crimes and he so testified at the trial. He stated that it "wasn't my intention in the beginning" to implicate Trammell and that later on while in jail he decided "I owe it to this women [deceased] and this family to tell the truth, that that man is walking on the street and I am in jail for something I didn't do and then hating my guts thinking that I killed her, which they are right in doing. I think I owe them enough to tell the truth". The testimony of the defendant at the trial in which he admitted to the voluntariness of the confession and at the same time charged Trammell with the commission of the crimes posed a question of credibility for the jury's determination. There is evidence beyond a reasonable doubt to sustain the conviction, the jury apparently having rejected the testimony of the defendant that Trammell was the guilty one. With that issue resolved there remains a minimum of issues for consideration. Complaint was made against the District Attorney as to his questioning of the witnesses and remarks in summation. We reiterate the often-quoted rule that a District Attorney has no right to make himself an unsworn witness or to inject his own personal view of the guilt of the defendant. However, in balancing such alleged misconduct, if there be any, it must, of necessity, be equated and weighed in respect to the comments made by the counsel for the defendant. The remarks charged, while better left unsaid, were not, under the present circumstances, inflammatory or sufficient in the light of the record as a whole to be considered so prejudicial as to require a new trial. There was an abundance of evidence — once the jury eliminated the defendant's claim as to Trammell — to find the defendant guilty beyond a reasonable doubt. It is further contended that the court erred in its charge, but the complaints are not directed to any error of law as such and, in any event, there were no exceptions and the defendant has accordingly waived any objections on appeal (Code Crim. Pro., § 420-a; People v. Simons, 22 N.Y.2d 533; People v. Harvey, 34 A.D.2d 857, 858). It should be further noted that in our opinion the charge, when read in context, was correct and fair. The other alleged errors, as outlined in the defendant's brief, are unsubstantial and without merit. It is our conclusion from an examination of the record in its entirety that the defendant had a fair and impartial trial and there were no violations of his constitutional rights under the Federal and State Constitutions. Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.