Opinion
March 6, 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 7, 1975 (the date on the clerk's extract is July 15, 1975), convicting him of robbery in the first degree, robbery in the second degree (two counts), grand larceny in the third degree and assault in the second degree (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The prosecutor elicited, and emphasized on summation, the fact that the sole defense witness had not reported to the police the fact that appellant allegedly had not been at the scene of the crime on the night in question. Such conduct has been held to be error and has been strongly condemned (see People v Mims, 59 A.D.2d 769; People v Hamlin, 58 A.D.2d 631). That fact was utilized by the prosecutor as a springboard for his improper accusation that the defense witness was a liar (see People v Burnside, 52 A.D.2d 626). At the close of his summation, he stated: "I will leave you with one parting shot: Why would an innocent man put a liar on the stand on his own behalf?" The sufficiency of proof on the issue of the identification of the appellant as the perpetrator of the crime was a close question, as it was in People v Mims (supra). Since the evidence of guilt was not overwhelming, these errors require reversal. Shapiro, J.P., Cohalan, Margett and Hawkins, JJ., concur.