Opinion
April 19, 1948.
Judgment of the County Court of Kings County, convicting defendant of the crime of murder in the second degree, reversed on the law and new trial ordered. Defendant was deprived of a fair trial by the adverse and improper comments of the prosecutor during the course of summation (1) upon the race of deceased and defendant ( Malinski v. New York, 324 U.S. 401, 434; People v. Esposito, 224 N.Y. 370, 373; Abbate v. Solan, 257 App. Div. 776; Saunders v. Champlain Bus Corp., 263 App. Div. 683), (2) upon the exercise by defendant of the right of peremptory challenge, together with appeals to individual jurors ( People v. Creasy, 236 N.Y. 205, 226), and (3) upon defendant's retention of an attorney and the payment of a fee to him, a subject on which defendant also had been improperly cross-examined. The prejudicial effect of this misconduct was accentuated by the court, which not only failed sternly to admonish the prosecutor but justified it, indulging at times in mild suggestions to the prosecutor to desist. Other prejudicial remarks and conduct of the prosecutor need not be enumerated as it is assumed that there will not be a recurrence thereof at the new trial. Lewis, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.