Opinion
March 7, 1988
Appeal from the Supreme Court, Kings County (Meyerson, 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.
Despite the existence of legally sufficient evidence to support the defendant's conviction of the above crimes, and the fact that the verdict was not against the weight of the evidence, we find that several instances of prosecutorial misconduct during the People's summation deprived him of a fair trial.
Initially, the record demonstrates that the prosecutor improperly used a prior inconsistent statement of the defendant, which was admissible solely for the purpose of impeachment, as evidence-in-chief of the defendant's guilt of the crimes charged in the indictment (see, People v. Gale, 138 A.D.2d 401 [decided herewith]).
Furthermore, the prosecutor erred in arguing to the jury that the defendant's counsel had not discussed his client's testimony during the defense summation because the testimony was "a crock" and "a lie". Comments of this nature which clearly suggest that counsel does not believe his own client's testimony have been condemned repeatedly by the courts due to the substantial and unfair risk of prejudice which they create (see, e.g., People v Jones, 74 A.D.2d 854; People v. Kane, 57 A.D.2d 575; People v Tatum, 54 A.D.2d 950; People v. Fluker, 51 A.D.2d 1045). Moreover, the prejudice resulting from this remark was exacerbated by the trial court's overruling of the defense counsel's prompt objection and by its statement that the comment was a permissible expression of the prosecutor's personal opinion (see generally, People v. Ashwal, 39 N.Y.2d 105).
Similarly, we note that the prosecutor further erred in advancing his personal opinions regarding the merits of the case at numerous points in the summation (see, People v. Ortiz, 125 A.D.2d 502), in repeatedly accusing the defendant of lying on the witness stand (see, People v. Ortiz, supra; People v. Ricchiuti, 93 A.D.2d 842; People v. Alston, 77 A.D.2d 906), and in suggesting, without any evidence in the record of an erroneous translation, that the discrepancies in the complainant's testimony were due to the fact that the complainant was required to testify through an interpreter (see, People v. Rivers, 96 A.D.2d 874). While some of the prosecutor's comments might have been justified in some measure by the defense counsel's summation comments (see, e.g., People v. Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912), we conclude that the repeated and pervasive improprieties in this case exceeded the realm of reasonable response to the defense counsel's arguments (see, People v. Wandoloski, 128 A.D.2d 568) and necessitate a reversal of the defendant's judgment of conviction.
In light of the foregoing, we do not consider the defendant's additional contentions. Bracken, J.P., Weinstein, Rubin and Sullivan, JJ., concur.