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An error by a Brooklyn Supreme Court justice has resulted in a new trial for a man convicted of murdering a grocery store owner during a 1994 robbery. During the 2002 trial of Jazzie Samuels, Supreme Court Justice Francois Rivera called for an overnight recess while Samuels was being cross-examined. Rivera instructed Samuels not to discuss his testimony with his assigned counsel. Though no objection was made, the Appellate Division, 2nd Department, said Thursday that the mistake warranted a new trial in the interest of justice. “The defendant correctly contends that this restriction denied him his right to counsel, and accordingly, his conviction must be reversed,” the court wrote in People v. Samuels, 2002-04302. “Although the defendant failed to preserve this issue for appellate review, we reach it in the exercise of our interest of justice jurisdiction.” The court also faulted Rivera for admitting testimony that had no place in the trial, and said prosecutors had violated the court’s Sandoval ruling by eliciting remarks from Samuels about statements he made to police in which he indicated he had committed other robberies ( People v. Sandoval, 34 NY2d 371). Samuels was in prison for another crime when officers visited him in 2001 about a 7-year-old murder in which three men robbed three grocery store owners, fatally shooting one of them. During the questioning, Samuels allegedly admitted to being a lookout in the robbery, though he later claimed a detective pressured him into admitting the role. He denied murdering the victim. Samuels’ photo was placed in a lineup and shown to one of the store owners who was robbed, as well as a passerby. Samuels was identified and then indicted; the passerby said Samuels was the one who fired the gun. At trial, Rivera allowed testimony that the eyewitnesses had also identified a co-defendant in a lineup, and that officers arrested Samuels and the co-defendant as a result of the lineup identifications. In its unsigned ruling yesterday, the 2nd Department said the errant testimony could have improperly influenced the jury. The court commented on its admission despite no objection during trial. “The admission of evidence of a witness’s identification of an accomplice not on trial is improper, since it is not relevant to any material issue and cannot be used as a basis for evaluating the accuracy of that witness’s identification of the defendant on trial,” the court wrote. “In addition, the detective’s testimony that he arrested the defendant after the defendant and his co-defendant were placed in lineups was likely to lead the jury to believe that the police were induced to take certain actions as a result of the eyewitness identifications, and therefore constituted improper implicit bolstering of the witnesses’ identification testimony.” Objections were made to the cross-examination of Samuels, and Rivera instructed the jury not to consider any crimes other than the one charged when reaching its verdict. The 2nd Department noted that repeated questioning violated the Sandoval ruling. The judge’s instructions during the overnight recess, however, proved the most convincing argument for the appellate panel. In granting a new trial, the court cited People v. Lowery, 253 AD2d 893, a 1998 2nd Department ruling in which a Queens trial judge made the same mistaken instruction to a defendant and his defense counsel. “The thing about this type of error is, it doesn’t matter what the facts of the case are,” said Katheryne M. Martone of the Legal Aid Society, Samuels’ appellate attorney. “It’s just such a fundamental type of error that there is no analysis of prejudice.” Justices Howard Miller, Fred T. Santucci, Robert A. Spolzino and Peter B. Skelos concurred on the ruling. Assistant District Attorneys Leonard Joblove and Cynthia Kean appeared for the Brooklyn District Attorney’s Office.

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