Opinion
March 9, 1987
Appeal from the Supreme Court, Kings County (Starkey, 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.
While the evidence at trial supports the jury's verdict, we are compelled to reverse the judgment of conviction because the defendant was deprived of a fair trial. On cross-examination of the defendant, the prosecutor asked him about his membership in a gang called the "Untouchables". As there was no discernable connection between such membership and the crimes with which the defendant was charged, these questions were improper and highly prejudicial (see, People v. Stewart, 92 A.D.2d 226; People v Torres, 72 A.D.2d 754). The prosecutor also asked the defendant about his failure to come forward with an exculpatory version of the events prior to trial. Such questioning was improper and highly prejudicial as the jury may be prone to construe such silence as an admission and, as a consequence, may draw an unwarranted inference of guilt (see, People v. Conyers, 52 N.Y.2d 454, 459). Although this second error was not objected to at trial, and the defendant has therefore failed to preserve this issue for appellate review, we nevertheless consider it in the interest of justice due to the absence of any curative instructions and the fact that the defendant's credibility was a crucial issue in this case.
In addition, there were errors in the trial court's charge to the jury. The trial court failed to instruct the jury that the People had the burden of proving each element of the crimes charged beyond a reasonable doubt (see, CPL 70.20; People v Newman, 46 N.Y.2d 126; People v. Oquendo, 121 A.D.2d 570; People v Roldos, 112 A.D.2d 388), and of disproving the justification defense beyond a reasonable doubt (see, People v. Steele, 26 N.Y.2d 526; People v. Kelly, 64 A.D.2d 955).
As the evidence of the defendant's guilt was not overwhelming, the improper acts by the prosecutor, combined with the errors in the charge, had the cumulative effect of depriving the defendant of a fair trial. Rubin, J.P., Kunzeman, Spatt and Harwood, JJ., concur.