Opinion
June 9, 1975
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 8, 1973, convicting him of criminally selling a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth and sixth degrees, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Several of the prosecutor's remarks during summation improperly intimated that defendant had the burden of proof. For example, it was improper for the prosecutor to comment on defendant's failure to offer any evidence other than his own testimony that he had not committed the crime. It was also improper to state that defendant's "mere denial" of his commission of the crime was not sufficient to create a reasonable doubt. If believed, the denial was certainly sufficient to create a reasonable doubt. The evidence of defendant's guilt, and in particular the identification, was not strong. Even the court stated that it thought a reasonable doubt was established as to identity, although it denied a motion to set aside the jury's verdict. In this context, the prosecutor's comments were harmfully prejudicial. The court's curative instructions were not sufficiently direct or strong to correct the defects. Rabin, Acting P.J., Hopkins and Shapiro, JJ., concur; Latham and Munder, JJ., dissent and vote to affirm the judgment.