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1
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OPINION
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EXTRACTED KEY WORDS
GRAND JURY DEFENDANT WITNESS GONZALEZ LAWRENCE EVIDENCE COURT PREJUDICE NY2D PROSECUTION CONTEXT JUDGE SHOOTING APPELLATE DIVISION TEENAGE WITNESS REVERSE IMPLICATE DEFENDANT TESTIFY OPINION OFFICER CONCUR CHARGES SUPRA MANNER RODRIGUEZ HOUSING PROJECT VICTIM DISTRICT MATERIAL WITNESS |
THE PEOPLE &C., RESPONDENT, v. RODNEY RUSS, APPELLANT.
79 N.Y.2d 173, 589 N.E.2d 379, 581 N.Y.S.2d 152 (1992).
February 25, 1992
2 No. 31
Decided February 25, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Ursula Bentele, for Appellant.
Margaret E. Mainusch, for Respondent.
BELLACOSA, J.:
Defendant appeals, by leave of a Judge of this Court, from an order of
the Appellate Division affirming his conviction for murder after a
jury trial. The reading of the Grand Jury testimony of teenage witness
Gonzalez to the petit jury under extremely prejudicial and improper
circumstances constituted reversible error. The prosecution adduced
"testimony" evincing only Gonzalez's refusal to implicate defendant in
the crime in order to indirectly present to the jury otherwise
unusable, highly inculpatory evidence. The resulting prejudice in the
context of the staging and presentation of testimonial evidence before
the petit jury exceeds tolerable limits.
Because the admission of Gonzalez's Grand Jury testimony engendered
serious prejudice which was exacerbated by the manner in which the
trial and "testimony" proceeded with respect to the other teenage
witness, Lawrence, we hold that the trial court erred in admitting
Gonzalez's Grand Jury testimony. We thus reverse the order of the
Appellate Division and grant a new trial.
Defendant Russ and a co-defendant, not before us, were accused of
shooting and killing Hector Rodriguez in the course of a mugging in
the hallway of a housing project in Brooklyn in June 1984. Nearly a
year later, a police officer met Gonzalez and Lawrence at the local
precinct where they had gone to visit a friend on an unrelated matter.
Gonzalez and Lawrence and their families lived in that same housing
project where the defendants also lived with their families. The
victim also lived in the projects. The officer, who knew the two
teenagers, questioned them in connection with the open investigation
of the Rodriguez slaying. He eventually secured their cooperation and,
under subpoena before the Grand Jury, they testified and implicated
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