People v. Powell — 64 A.D.2d 676

Majority

p. 676

The People of the State of New York, Respondent, v Charles Powell, Appellant.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 31, 1977, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and

p. 677

imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. The proof against the defendant was not overwhelming, a sharp issue of identification was presented, and the defendant adduced alibi testimony, all of which emphasized the importance of a fair trial. We find that the Assistant District Attorney, in her summation, exceeded the bounds of due process in her reference to defense counsel and the alibi witnesses (see People v Sarmiento, 40 AD2d 562 ; People v Coles, 47 AD2d 905 ; People v Burnside, 52 AD2d 626 ; People v Tatum, 54 AD2d 950 ). Since the issue of guilt was close, the references were prejudicial and require a new trial. Hopkins, J. P., Damiani, Titone and Suozzi, JJ., concur.