Opinion
December 1, 1986
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
The defendant is entitled to a new trial on the ground that the prosecutor, in his summation, and the trial court in its charge to the jury, improperly commented upon the defendant's failure to testify and to call witnesses in his own behalf (see, CPL 60.15; People v. Brown, 91 A.D.2d 615; People v. La Susa, 87 A.D.2d 578; People v. Abreu, 74 A.D.2d 876). While these errors were not preserved for review as a matter of law (see, People v. Hoke, 62 N.Y.2d 1022), given the magnitude of the errors and the less than overwhelming evidence of guilt, the interest of justice mandates reversal. To the extent that the defendant's other contentions, including those raised in his pro se brief, have been preserved for our review, we find them to be without merit. Lazer, J.P., Mangano, Lawrence and Kooper, JJ., concur.