SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 2, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
RAYMOND STANZA BOWEN, APPELLANT
Judgment of the Supreme Court, Queens County, rendered February 7, 1968, reversed, on the law, and a new trial granted in the interests of justice.
Christ, Acting P. J., Benjamin, Martuscello and Kleinfeld, JJ., concur; Munder, J., dissents and votes to affirm the judgment.
The findings of fact below are affirmed. Although there were sharp issues of fact concerning the circumstances under which defendant was found by the police at the burglarized premises, we are of the opinion that the People's evidence, which the jury apparently credited, is sufficient to support the conviction herein. Nevertheless, we are constrained to reverse the judgment and to order a new trial in the interests of justice because of the possibility that defendant was unduly prejudiced by certain remarks directed to defense counsel by the Trial Justice, in the presence and hearing of the jury. Whether or not provoked by counsel, these remarks were unnecessarily personal and harsh and should not, in any event, have been made in the jury's presence. "The development of the facts in the presence of a jury so far as is humanly possible should be uncomplicated by personalities and acrimony" (Buckley v. 2570 Broadway Corp., 12 A.D.2d 473). This admonition applies a fortiori to the trial of criminal actions, wherein liberty is at stake.
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