Opinion
January 9, 1978
Appeal, by defendant, from a judgment of the Supreme Court, Kings County, rendered February 26, 1975, upon resentence, convicting him of various drug-related offenses, 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. It is our opinion that the prosecutor made certain improper statements during the trial, and particularly during his summation, which, collectively, acted to deprive defendant of a fair trial. Indeed, this is conceded by the People. Accordingly, a new trial is required.
I disagree with the majority and vote to affirm. I do not think that the prosecutor's remarks referred to by the majority were so improper or prejudicial as to warrant reversal of the judgment of conviction and the ordering of a new trial. My examination of the record on appeal reveals that such statements were, for the most part, either fair comment on the evidence adduced, or responsive to arguments raised by defense counsel. Although several of the comments do tend to border on impropriety, to whatever extent they may be considered erroneous, I believe that the overwhelming evidence of defendant's guilt adduced at the trial renders such errors harmless beyond a reasonable doubt (see People v Crimmins, 36 N.Y.2d 230).