People v. Spence , 82 A.D.2d 750 ( 1981 )

Judgment, Supreme Court,. Bronx County (Ostrau, J.), rendered December 2, 1976, convicting defendant-appellant, after jury trial, of robbery in the first degree and sentencing him to an indeterminate term of 3 to 12 years, unanimously affirmed. Were it not for the overwhelming proof of guilt, it would be necessary for us to reverse this conviction as a matter of discretion in the interest of justice because of misconduct by the prosecutor. However, an examination of the record has convinced us that the defendant was not denied a fair trial and that there was no significant probability that the jury would have acquitted the defendant had it not been for the errors which occurred (People v Crimmins, 36 NY2d 230, 242). The prosecutor improperly and repeatedly placed defendant in the position of having to characterize each of the prosecution witnesses as lying and then compounded the error in summation by excessive emphasis on that same issue and by then vouching for the credibility of those witnesses. In addition both in his opening and in his cross-examination of the defendant, the prosecutor brought out prejudicial facts concerning an uncharged crime, the alleged firing of a weapon at the police officers’ van by the defendant’s reputed accomplices. Concur — Murphy, P. J., Birns, Carro and Lynch, JJ; Kupferman, J., concurs in the result only.