People v. King

112 A.D.2d 169, 491 N.Y.S.2d 66, 1985 N.Y. App. Div. LEXIS 56456

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered November 2, 1981, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.

We reverse the conviction and order a new trial due to the numerous improper remarks the prosecutor made during summation (see, People v Whalen, 59 NY2d 273, 280; People v Ashwal, 39 NY2d 105, 109; People v Mott, 94 AD2d 415; People v Sanchez, 92 AD2d 595, affd 61 NY2d 1022). Among these errors was the use of an unnecessarily and unwarranted inflammatory summation, and the prosecutor’s persistent reference to matters outside the evidence and open invitation to the jury to speculate about such matters (see, People v Ashwal, supra; People v Sanchez, supra; People v Mejias, 72 AD2d 570). Under the facts of this case, these errors cannot be deemed harmless and warrant reversal in the interest of justice.

While the issue of justification was close, the conflicting evidence presented a question of credibility for the jury to resolve. We cannot say that the prosecutor failed to meet his burden as a matter of law. We have considered defendant’s remaining contentions and find them to be without merit. Bracken, J. P., O’Connor, Rubin and Kunzeman, JJ., concur.