Opinion
Submitted November 24, 1976
Decided December 28, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, GEORGE BEISHEIM, JR., J.
Stewart A. Roberts for appellant.
Carl A. Vergari, District Attorney (Ronald J. Bavero and Carl F. Lodes of counsel), for respondent.
MEMORANDUM. Although the court in its charge need "not marshal or refer to the evidence to any greater extent than is necessary" to explain the material legal principles (CPL 300.10, subd 2), any marshaling of the evidence must be done fairly. Here the court chose to summarize all the direct testimony of all the witnesses and in addition pointed out the single inconsistency in the defendant's testimony. However, the court neglected to mention any of the numerous inconsistencies in the testimony of the witnesses for the prosecution. In our view this was error and since the whole case turned on a very close question of credibility, this error cannot be considered harmless. The order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order reversed, etc.