Opinion
March 25, 1993
Appeal from the Supreme Court, New York County (Martin H. Rettinger, J.).
In this retrial of charges arising from the gunpoint robbery of a part-time livery cab driver and his common-law wife by their passenger, the prosecutor, on redirect examination, impermissibly bolstered the driver's description of the perpetrator's facial hair by eliciting his prior consistent statements made at the first trial, which delved into unrelated aspects of the description without even attempting to clarify the subject matter of the cross-examination bearing upon the issue (see, People v Melendez, 55 N.Y.2d 445, 451-452). This, coupled with the prosecutor's repetitive and haranguing comments in summation, a practice repeatedly condemned by this Court (People v. Martin, 172 A.D.2d 268, 270; see also, People v. Clemons, 166 A.D.2d 363, 366), that defendant, who admitted lying at the first trial about his activities earlier in the day of the robbery, had lied about other matters as well, and his vouching for the credibility of one of the police witnesses, cumulatively served to prejudice defendant and deprive him of a fair trial, especially where the evidence of guilt was not overwhelming, the first trial having ended with a hung jury (see, People v. Hansen, 141 A.D.2d 417, lv withdrawn 72 N.Y.2d 919; People v. Shanis, 36 N.Y.2d 697). Although unpreserved by appropriate objection, we consider the question of the prosecutor's improper comments during summation in the interest of justice (CPL 470.15 [a]).
Concur — Milonas, J.P., Ellerin, Kupferman and Kassal, JJ.