Opinion
April 19, 1977
Judgments, Supreme Court, New York County, rendered April 21, 1975, convicting defendants of robbery in the first degree, unanimously reversed, on the law, on the facts, and as a matter of discretion in the interest of justice, and this case remanded for a new trial. The overriding issue presented at trial was whether complainant Brown could identify the defendants as two of the four individuals who had robbed him. During the course of the Assistant District Attorney's summation, the lower court made the following comment with regard to the complainant: "He remembers the fact of the height, he remembers the beard, he remembers the face, he had an opportunity to observe him." The afore-mentioned remark improperly buttressed the prosecution's case and undercut the defense of alibi. This highly prejudicial comment of the lower court warrants a reversal and a new trial.
Concur — Murphy, P.J., Lupiano, Capozzoli and Lane, JJ.