October 17, 1960
Appeal by defendant from a judgment of the County Court, Kings County, rendered January 6, 1960, after a jury trial, convicting him of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 15 to 30 years. At the trial defendant interposed the defense of an alibi, which was corroborated by his "girl friend". Prior to his arraignment in Felony Court, defendant was interrogated by an Assistant District Attorney. The questions and answers were taken down stenographically. At the trial defendant admitted making the answers to some of the questions and denied certain others. Defendant was asked whether he made certain answers to certain questions. His answers were not responsive. He was then questioned by the court as follows: "Did you make the answers, or did the District Attorney invent these? A. No, sir; I didn't make those answers. The Court: You didn't. All right. The District Attorney is a liar too." Thereupon, defendant's motion for the withdrawal of a juror and for the declaration of a mistrial was denied, and defendant excepted. Judgment reversed on the law and the facts, and a new trial ordered. In our opinion the evidence presented a sharp question of credibility. Under the circumstances, the court's remarks, undoubtedly inadvertent, were prejudicial to defendant and require a new trial. ( People v. Ohanian, 245 N.Y. 227; People v. Mendes, 3 N.Y.2d 120; People v. Ochs, 3 N.Y.2d 54. ) While the court's charge was fair and impartial, we are unable to determine whether the prior prejudicial remarks were dissipated from the minds of the jury. ( People v. Carborano, 301 N.Y. 39.) Nolan, P.J., Beldock, Kleinfeld, Christ and Pette, JJ., concur.