Opinion
April 8, 1985
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered.
Several errors combined to deny defendant a fair trial. During her summation, the prosecutrix commented on matters unsupported by the record which encouraged the jury to speculate that certain items of jewelry taken from the defendant upon his arrest were stolen from the complainant during the robbery but which, it appears, were never, in fact, recovered. This error was exacerbated when the court overruled defense counsel's objection, thereby legitimizing the argument ( see, e.g., People v. Ashwal, 39 N.Y.2d 105; People v. Rivers, 96 A.D.2d 874). In addition, on several occasions the prosecutrix attempted to indicate that defendant had been extensively involved in crimes other than the ones for which he was on trial ( see, e.g., People v. Richards, 78 A.D.2d 664). This was compounded by cross-examination of defendant concerning his use of aliases during the investigation of offenses about which cross-examination had been precluded pursuant to People v. Sandoval ( 34 N.Y.2d 371; see, e.g., People v. Evans, 88 A.D.2d 604). Although the questions themselves did not explicitly indicate that defendant had been convicted of crimes, the implication of criminal conduct was patent. Furthermore, the prosecutrix's attempt to circumvent the pretrial Sandoval ruling limiting inquiry solely to certain convictions was apparent by her improper inquiry as to whether defendant, on one of the unprecluded convictions, had pleaded to a lesser offense after being charged with robbery in the first degree. Finally, the testimony of another Assistant District Attorney as to the lineup procedures improperly bolstered complainant's identification testimony ( People v. Trowbridge, 305 N.Y. 471; see, e.g., People v. Hall, 82 A.D.2d 838).
Although not technically error, upon retrial the court should give a more detailed identification charge ( see, People v Daniels, 88 A.D.2d 392, 401-402). Titone, J.P., Bracken, Rubin and Lawrence, JJ., concur.