Opinion
2001-06770.
December 29, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered July 24, 2001, convicting him of attempted robbery in the second degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Tonya Plank of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Seth M. Lieberman of counsel; Shalom Doron on the brief), for respondent.
Before: HOWARD MILLER and THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
While the defendant's objections regarding comments made by the prosecutor during summation were not properly preserved for appellate review, we nevertheless review them in the exercise of our interest of justice jurisdiction ( see CPL 470.15[a]). During summation, the prosecutor improperly denigrated the defense by repeatedly accusing the defendant of "lying" on the witness stand and tailoring his testimony to conform to the People's proof ( see People v. Shanis, 36 N.Y.2d 697; People v. Washington, 278 A.D.2d 517; People v. Walters, 251 A.D.2d 433; cf. Portuondo v. Agard, 529 U.S. 61; People v. Russo, 201 A.D.2d 512, affd 85 N.Y.2d 872), and by stating that the defense counsel had tried to "trip * * * up" and "confuse" the complainant on cross-examination and mislead the jury in summation by asking it to focus on irrelevant issues ( see People v. Ortiz, 125 A.D.2d 502; People v. Jackson, 143 A.D.2d 363; People v. Brown, 111 A.D.2d 248). In addition, the prosecutor repeatedly vouched for the complainant's credibility, stating that he was "perfectly candid," "being forthright," and "very accurate," stating that "I submit to you that [his] testimony is credible and it is also accurate," and arguing that he had no motive to lie ( see People v. Blowe, 130 A.D.2d 668; People v. Ortiz, 125 A.D.2d 502; People v. Ricchiuti, 93 A.D.2d 842). The prosecutor also implied that the jury would have to find that the complainant had lied on the witness stand in order to acquit the defendant, which impermissibly shifted the burden of proof to the defendant ( see People v. Bull, 218 A.D.2d 663; People v. Langford, 153 A.D.2d 908; People v. Bonaparte, 98 A.D.2d 778). Finally, the prosecutor inappropriately insinuated that the defendant should not have elected to exercise his right to a trial because he was "caught red-handed" ( see People v. Rivera, 116 A.D.2d 371; People v. Rosado, 43 A.D.2d 916).
We agree with the defendant that the cumulative effect of the prosecutor's improper summation comments deprived him of his right to a fair trial ( see People v. Calabria, 94 N.Y.2d 519; People v. Jamal, 307 A.D.2d 267). Since the evidence in this case was less than overwhelming, we cannot deem this error harmless, and a new trial is required ( see People v. Crimmins, 36 N.Y.2d 230, 237; People v. Bonaparte, supra; People v. Alston, 77 A.D.2d 906).
PRUDENTI, P.J., S. MILLER, H. MILLER and ADAMS, JJ., concur.