Opinion
October 14, 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 21, 1977 and October 4, 1977, convicting him of assault in the first degree and criminal possession of a weapon in the fourth 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. Defendant was charged, inter alia, with assault in the first degree as a result of a stabbing incident. The defendant testified in his own defense and, on cross-examination, the prosecutor repeatedly tried to have him state that a police witness was a liar. On summation, the prosecutor commented that if the defendant stuck to his story "he would be calling Detective Doyle a liar". Thereafter, he proceeded to vouch for the officer's testimony. This court has repeatedly condemned such questions and comments by the prosecution as prejudicial (see, e.g., People v. Yant, 75 A.D.2d 653; People v. Diaz, 73 A.D.2d 604; People v. Lopez, 73 A.D.2d 676). Besides improperly questioning the defendant as to whether the police were lying, the prosecutor's vouching for the police officer's testimony constituted improper bolstering (see People v. Perez, 69 A.D.2d 891; People v. Webb, 68 A.D.2d 331). In addition, the prosecutor's denigration of the defense witnesses' testimony was improper (see People v. Shanis, 36 N.Y.2d 697; People v. Webb, supra). The fact that defense counsel failed to object to some of the prosecutor's questions or comments does not preclude this court from ordering a new trial as a matter of discretion in the interest of justice (see People v. Butler, 57 A.D.2d 931). In addition, we note that the prosecutor improperly cross-examined the defendant's character witness as to his actual knowledge of particular acts of misconduct (see People v. Kennedy, 47 N.Y.2d 196; People v Alamo, 23 N.Y.2d 630, cert den 396 U.S. 879) and the trial court improperly questioned the defendant and made comments concerning an alleged eyewitness (cf. People v. De Jesus, 42 N.Y.2d 519; People v. Bell, 38 N.Y.2d 116). Damiani, J.P., Gulotta, Martuscello and O'Connor, JJ., concur.