People v Woody Augustine

People v Augustine 2004 NY Slip Op 02765 [6 AD3d 543] April 12, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

The People of the State of New York, Respondent,
v
Woody Augustine, Appellant.

—[*1]

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered December 11, 2001, convicting him of assault in the first degree, assault in the second degree (two counts), resisting arrest, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

The defendant correctly contends that the prosecutor's questions regarding whether he "ma[de] an outcry" or filed a police report after his arrest were improper and violated his right to remain silent (see People v Haines, 139 AD2d 591 [1988]; People v Livingston, 128 AD2d 645 [1987]; People v Pavao, 59 NY2d 282 [1983]). While the trial court properly sustained defense counsel's objections before the questions were answered, it erred in denying a subsequent request for curative instructions. As the evidence of the defendant's guilt was not overwhelming, this error was not harmless, and a new trial is warranted (cf. People v Henry, 306 AD2d 539 [2003]).

In light of the foregoing, we need not reach the defendant's remaining contentions. Altman, J.P., Florio, Luciano and Mastro, JJ., concur.