Opinion
November 7, 1983
Appeal by defendant from a judgment of the Supreme Court, Queens County (Agresta, J.), rendered January 16, 1981, convicting him of attempted robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Several errors in this case deprived the defendant of a fair trial and mandate the reversal of his conviction, despite the fact that some of those errors were not preserved. In this case, the most important issue concerned the identification of the defendant. Thus, the trial court's failure to instruct the jury with respect to the evaluation of identification evidence was error (see People v Daniels, 88 A.D.2d 392; People v Terry, 83 A.D.2d 844; People v Foti, 83 A.D.2d 641; People v Merriman, 79 A.D.2d 619). Further, under the circumstances, the trial court's failure to instruct the jury on the ambiguity of evidence of flight and as to the weakness of such evidence as an indication of guilt was also error. That error was particularly prejudicial to defendant in view of the prosecutor's improper comments during summation that defendant's "flight and his actions speak louder than any testimony in this courtroom * * * It was said some two thousand years ago * * * `[t]he wicked flee when no man pursue, but the righteous stand as brave as young lions.' He fled because he knew he had just committed an attempted robbery and he had to get rid of that gun" (see People v Baker, 26 N.Y.2d 169, 174; People v Limage, 57 A.D.2d 906, affd 45 N.Y.2d 845; People v Flores, 75 A.D.2d 649). In addition, there were numerous other instances of prosecutorial misconduct. For example, during his cross-examination of defendant, the prosecutor repeatedly argued with defendant about collateral issues and made sarcastic remarks regarding defendant's testimony such as "You got away. You almost got away, didn't you?" (see People v Higgins, 88 A.D.2d 921; People v Conner, 69 A.D.2d 908). In his summation, the prosecutor also made numerous improper comments such as "What did he have, a license to commit armed robberies when you're an ex-Marine?" (see People v Whitehurst, 87 A.D.2d 896; People v Robinson, 83 A.D.2d 887; People v Sarmiento, 40 A.D.2d 562). The totality of these errors mandate reversal of the judgment appealed from and a new trial. Lazer, J.P., Gibbons, Weinstein and Boyers, JJ., concur.