Opinion
July 1, 1985
Appeal from the Supreme Court, Kings County (Kooper, J.).
Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.
We reverse the conviction and order a new trial due to the numerous improper remarks the prosecutor made during summation ( see, People v. Whalen, 59 N.Y.2d 273, 280; People v. Ashwal, 39 N.Y.2d 105, 109; People v. Mott, 94 A.D.2d 415; People v. Sanchez, 92 A.D.2d 595, affd 61 N.Y.2d 1022). Among these errors was the use of an unnecessarily and unwarranted inflammatory summation, and the prosecutor's persistent reference to matters outside the evidence and open invitation to the jury to speculate about such matters ( see, People v. Ashwal, supra; People v. Sanchez, supra; People v. Mejias, 72 A.D.2d 570). Under the facts of this case, these errors cannot be deemed harmless and warrant reversal in the interest of justice.
While the issue of justification was close, the conflicting evidence presented a question of credibility for the jury to resolve. We cannot say that the prosecutor failed to meet his burden as a matter of law. We have considered defendant's remaining contentions and find them to be without merit. Bracken, J.P., O'Connor, Rubin and Kunzeman, JJ., concur.