People v. Behling

A hearing solely to determine defendant’s or his lawyer’s knowledge of the codefendant’s recantation would not yield a decisive result. Regardless of whether defendant or his trial lawyer knew of the former codefendant’s recantation of statements involving defendant in the instant crime, it was not permissible for the prosecutor to advise the jury in summation that the codefendant had so implicated defendant without also advising them of the recantation. Nor is the impropriety made the less because the prosecutor may have believed the codefendant’s recantation to be false and a maneuver either to avoid giving testimony or to avoid being thought disloyal to the defendant (see People v. Ahmed, 20 N Y 2d 958 , 960). Consequently, a new trial is required.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Beeitbl, Jasen and Gibson concur.

Judgment reversed and a new trial ordered.