Opinion
December 1, 1986
Appeal from the Supreme Court, Queens County (Posner, 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. The facts have been considered and are determined to be established.
During the course of her summation, the prosecutrix exceeded the bounds of proper advocacy by implying that the defendant's stipulation that the victim had been raped and sodomized was a stipulation that the victim had told the truth, and by improperly bolstering the victim's testimony. The prosecutrix further exceeded proper bounds by telling the jury that if the victim's testimony was not enough, "then there's something terrible, something terribly wrong with you".
In a close case such as this, where the victim was able to see her assailant only briefly, the incident took place around midnight on a rooftop, and the description the victim gave of her assailant differed from the defendant's actual appearance two days later, it cannot be said that the prosecutrix's overzealousness was harmless. Consequently, a new trial is warranted (see, People v. McCann, 90 A.D.2d 554; People v Crimmins, 36 N.Y.2d 230). Lazer, J.P., Eiber, Kunzeman and Kooper, JJ., concur.