People v. Vario

257 A.D. 975, 13 N.Y.S.2d 41, 1939 N.Y. App. Div. LEXIS 8755

Opinion

Judgment of the County Court of Queens county, convicting appellant of the crimes of rape in the first degree and assault in the second degree, reversed on the law and the facts and a new trial ordered. Although we regard the testimony of Millie Handelman in particular as furnishing all necessary corroboration, and the proof in general as amply warranting the conviction, yet the failure of the assistant district attorney to make an opening (Code Grim. Proc. § 388; People v. Romano, 279 N. Y. 392), his persistent and gratuitous comments during the course.of the trial and the inflammatory summation, with covert references to the failure of the defendant to testify, require reversal and a new trial. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ., concur.