On appeal to the Appellate Division of the New York Supreme Court, his conviction was affirmed on December 30, 1974, in an opinion by Mr. Justice Steuer, one Judge dissenting. People v. Alicea, 46 A.D.2d 322, 362 N.Y.S.2d 480 (1st Dep't 1974). The defendant complained on his appeal that the conduct of the assistant district attorney who conducted the prosecution was improper and prejudiced a fair trial.

In the light of the coercive pressures and inducements of these circumstances, it was hardly an offer that he could refuse. While the Appellate Division characterized its determination that the trial had been unfair as "inescapable", it did not vacate the plea here because it apparently felt bound by its earlier decision in People v Alicea ( 46 A.D.2d 322), which had not yet then been reversed ( 37 N.Y.2d 601). It is interesting that the trial prosecutor in Alicea and in the present case are one and the same. It is difficult to believe that the defendant's witnessing of the outrageous means which then appeared permissible of employment against him in a court of law would not have a demoralizing effect.

That prosecutorial misconduct requires the vacating of the judgment of conviction after the jury trial should not "provide a guilty defendant with an undeserved windfall." (People v Alicea, 46 A.D.2d 322, 323. See, also, People v Miller, 50 A.D.2d 757; cf. People v La Ruffa, 37 N.Y.2d 58, 61.) Concur — Markewich, J.P., Kupferman, Lupiano and Nunez, JJ.; Murphy, J., dissents in the following memorandum:

Although we agree, to some extent, that certain comments by the prosecutor and the court were ill-advised and unfortunate, nevertheless, we do not believe that reversible error was committed, or "that the totality of incidents * * * prevented the jury from making a determination on the evidence." (People v Alicca, 46 A.D.2d 322.) A review of the record indicates that the issues were fairly presented to the jury and that proof of guilt was conclusive. The complainant's identification of the defendant was clear and the circumstances under which complainant observed defendant at the time of the robbery were such as to negate any likelihood of mistaken identification.

Vargas and Alicea were tried jointly. We have sustained the conviction of Alicea ( 46 A.D.2d 322) despite the clear prosecutorial misconduct in the trial of that case. The testimony patently believed by the jury discounted the contentions related to self-defense interposed at the trial, and it appears clear therefrom that it was Alicea who actually "pulled the trigger" resulting in the death of Lopez. As to Alicea, therefore, even in the face of the overzealousness of the prosecutor, affirmance of his conviction was warranted (People v Crimmins, 36 N.Y.2d 230; cf. People v Ketchum, 35 N.Y.2d 740).