People v. Williams 39 A.D.2d 970

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered on resentence April 6, 1971, nunc pro tunc as of March 29, 1971, convicting him of criminally selling a dangerous drug in the third degree (a felony) and other crimes, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial granted. In our opinion, the following errors deprived defendant of a fair trial: (1) statements in the prosecutor’s summation accusing defendant of the commission of similar crimes (People v. McKinney, 24 N Y 2d 180) and raising the issue of police perjury if defendant’s testimony were believed by the jury and (2) that portion of the trial court’s instructions which, in effect, told the jury to acquit defendant only if they believed the police officers were guilty of perjury (People v. Roberts, 26 A D 2d 655), thereby unduly limiting the jury’s function to resolve inconsistencies in the trial testimony as it saw fit. Martuseello, Acting P. J., Latham, Christ and Benjamin, JJ., concur; Gulotta, J., concurs, with the following additional memorandum: I concur in the reversal on the grounds relied upon in the prevailing memorandum. However, additionally, I believe that under the particular facts of this case the refusal of the trial court to direct the prosecution to divulge the identity of an alleged informant, whose existence was challenged by defense counsel, was also error depriving defendant of a fair trial (Roviaro v. United States, 353 U. S. 53; People v. Malinsky, 15 N Y 2d 86, 94).