Opinion
KA 02-02203.
July 9, 2004.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered June 17, 2002. The judgment convicted defendant, upon a jury verdict, of rape in the third degree (four counts), criminal possession of a weapon in the third degree and endangering the welfare of a child.
Present — Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of four counts of rape in the third degree (Penal Law § 130.25) and one count each of criminal possession of a weapon in the third degree (§ 265.02 [1]) and endangering the welfare of a child (§ 260.10 [1]). We conclude that the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 NY2d 490, 495) and that Miranda warnings were adequately communicated to defendant. However, as the People correctly concede, reversal is required based on prosecutorial misconduct during summation ( see generally People v. Mott, 94 AD2d 415, 421-422). The prosecutor's comments on summation were irrelevant and inflammatory ( see People v. Downing, 112 AD2d 24, 25) and "had `a decided tendency to prejudice the jury'" ( People v. Halm, 81 NY2d 819, 821, quoting People v. Ashwal, 39 NY2d 105, 110).