Opinion
Argued April 29, 1983
Decided June 7, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, EDWIN TORRES, J.
Barry S. Stendig and William E. Hellerstein for appellant.
Robert M. Morgenthau, District Attorney ( Gerard V. Bradley and David Steiner of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
Defense counsel's argument on summation that the victim had been prompted by the police to carelessly or deliberately misidentify the defendant as the person who robbed him invited a strong response from the prosecutor (cf. People v Marks, 6 N.Y.2d 67, 77-78). However, the prosecutor exceeded the bounds of proper summation when he argued that the victim would have been "suicidal or foolish" to do so and twice thereafter repeated that remark, when there was no evidence that the defendant or anyone allied with him had injured or threatened the witness in connection with his testimony (compare People v Ashwal, 39 N.Y.2d 105, with People v Shilitano, 218 N.Y. 161; and People v Plummer, 36 N.Y.2d 161). Under the circumstances, although the defendant's objection was sustained, the defendant was entitled to have the jury instructed that the prosecutor's remarks were unfounded, and improper, and should be disregarded. The court's refusal to grant the defendant's request for curative instructions constituted reversible error ( People v Ashwal, supra, p 111).
Since there must be a new trial we note that the court did not err in admitting the statement allegedly made by the defendant while concealed behind a door in the apartment complex. Unlike People v Smith ( 52 N.Y.2d 802), in this case there was evidence to connect the defendant with the statement sufficient to submit it for the jury's consideration (cf. People v Mirenda, 23 N.Y.2d 439).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur in memorandum.
Order reversed, etc.