Opinion
July 21, 1980
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered May 15, 1979, convicting him of two counts of robbery in the first degree and one count of unauthorized use of a motor vehicle, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No issues have been presented with respect to the sufficiency of the trial evidence. In this case, the primary issue before the jury was identification. It was therefore improper and highly prejudicial for the prosecutor, in his summation, to tell the jury that a vote of not guilty was the equivalent of saying that the two identifying witnesses had lied. The statement distorted the issue before the jury and may well have led the jury to believe that there was no possibility that the witnesses were mistaken. The unfairness was compounded when the trial court overruled defense counsel's objection to the prosecutor's statement, saying, "It is a fair comment." Accordingly, reversal is required. (See, e.g., People v Schaaff, 71 A.D.2d 630; People v. Dennis, 62 A.D.2d 1022.) Unlike People v. Castillo ( 16 A.D.2d 235, affd 12 N.Y.2d 732), nothing in defense counsel's summation here invited this sort of comment from the prosecutor. Mollen, P.J., Hopkins, Titone and Mangano, JJ., concur.