People v. Giersz , 624 N.Y.S.2d 847 ( 1995 )

—Appeal by the defendant from an amended judgment of the Supreme Court, Queens County (Flug, J.), rendered December 21, 1992, convicting him of burglary in the third degree, criminal possession of stolen property in the fifth degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Ordered that the amended judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

Contrary to the defendant’s contention, there was legally sufficient evidence to support his conviction. We find, however, that he is entitled to a new trial because the prosecutor’s summation exceeded the broad bounds of rhetorical comment permissible in closing arguments (see, People v Galloway, 54 NY2d 396; People v Ashwal, 39 NY2d 105). The erroneous comments by the prosecutor cannot be considered harmless as the proof of the defendant’s guilt was not overwhelming, particularly with respect to the charge of burglary in the third degree.

We have examined the defendant’s remaining contentions and find them to be either without merit or academic in view of our determination. O’Brien, J. P., Hart, Goldstein and Florio, JJ., concur.