Opinion
July 20, 1970
Judgment of the Supreme Court, Kings County, rendered September 21, 1966, affirmed. Appellant contends that the prosecutor made numerous remarks in his summation which constituted prejudicial error. It is true that several of the aforesaid remarks were improper. However, with the exception of one remark, defendant made no motion for a mistrial and did not object thereto. Moreover, defendant's guilt was overwhelmingly established by the testimony of several policemen and, consequently, any errors because of the prosecutor's summation must be characterized as harmless (Code Crim. Pro., § 542). Christ, P.J., Hopkins, Munder and Martuscello, JJ., concur; Rabin, J., dissents and votes to reverse the judgment and to order a new trial in the interests of justice, with the following memorandum: I am of the view that the prosecutor's remarks during summation were highly prejudicial to defendant and quite obviously jeopardized his ability to establish his defense of alibi. During his summation the prosecutor (1) made himself an unsworn witness, (2) improperly bolstered certain police testimony and (3) referred to sales of narcotics to more than one person although the testimony related only to alleged sales to a single person. Where, as here, the improper remarks substantially prejudice the defendant's persuasiveness regarding his defense of alibi which was testified to by several witnesses, the doctrine of "harmless error" ought not to be applied.