Opinion
May 25, 1970
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 23, 1968, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The findings of fact below are affirmed. We believe the prosecutor's summation to the jury went far beyond the bounds of fair play and violated defendant's right to a fair trial ( People v. Lombardi, 20 N.Y.2d 266). His references to defendant as a "junkie", "rat" and a "sculptor" with a knife, among others, as well as his suppositions as to defendant's state of mind on the night in question and defendant's actions had he remained in the tavern a while longer, were clearly improper and intended to inflame the jury. Moreover, it was highly prejudicial for the prosecutor to vouch for the truthfulness of certain of his witnesses and make himself an unsworn witness as to whether there were any other eyewitnesses to the fight who were not called to testify, especially as this case rested entirely upon the credibility of the witnesses. Christ, P.J., Munder, Martuscello, Latham and Kleinfeld, JJ., concur.