Opinion
May 4, 1987
Appeal from the Supreme Court, Queens County (Dunkin, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
We find that the defendant was deprived of his right to a fair trial by virtue of numerous instances of prosecutorial misconduct which occurred throughout the course of the trial. The most serious incident of misconduct occurred when the prosecutor persistently elicited testimony which the court had previously suppressed as hearsay. Thereafter, the prosecutor, despite having been warned not to do so, improperly referred to this suppressed hearsay during summation. Reference to this highly damaging inadmissible testimony, in flagrant disregard of the trial court's rulings, constitutes reversible error (see, People v Stewart, 92 A.D.2d 226; People v. Billingsley, 74 A.D.2d 645).
In addition to the foregoing, the prosecutor repeatedly alluded to facts which were not in evidence, essentially forced the defendant to say that the prosecution witnesses were lying (see, People v. Sepulveda, 105 A.D.2d 854; People v. Calderon, 88 A.D.2d 604; People v. Santiago, 78 A.D.2d 666), characterized the defense summation as a "fairy tale" (see, People v. Langert, 105 A.D.2d 845, 846), vouched for the credibility of prosecution witnesses while denigrating the defense (see, People v. La Rosa, 112 A.D.2d 954; People v. Ricchiuti, 93 A.D.2d 842), and otherwise exceeded the bounds of proper rhetorical comment during summation. In a case such as this, where the evidence of guilt was far from overwhelming, where the misconduct was pervasive, and where the jury was not fully apprised of the impropriety of some of the statements made by the prosecutor, a reversal is warranted, and a new trial must be held. Thompson, J.P., Bracken, Brown and Eiber, JJ., concur.