Rosenberger, J. P., dissents in a memorandum as follows:
I would reverse and remand for a new trial on the sole ground of the prosecutor's inflammatory and misleading statements on summation ( see, People v. Ashwal, 39 N.Y.2d 105, 110). Even when there is strong evidence of a defendant's guilt, reversal is warranted when the cumulative effect of erroneous and prejudicial statements by the prosecutor denied the defendant a fair trial ( People v. Ortiz, 116 A.D.2d 531; People v. Rosa, 108 A.D.2d 531, 539; People v. Dowdell, 88 A.D.2d 239, 248; People v. Cancel, 61 A.D.2d 497, 498). "The right to a fair trial is self-standing and proof of guilt, however overwhelming, can never be permitted to negate this right" ( People v. Crimmins, 36 N.Y.2d 230, 238). This Court has often repeated that clear holding. Indeed, in People v. Dowdell (supra, at 239-240), the second sentence of the opinion is: "In this case, appellant's guilt was established by overwhelming evidence, and if this case had been tried without the numerous errors, hereinafter discussed, appellant's conviction would have been readily affirmed."
Defendant was charged with armed robbery of two Martin Paints stores. On summation, the prosecutor improperly suggested that Anthony McNeil, a store employee who witnessed the second robbery, did not testify because he was afraid of defendant: "Did it really shock anybody that Anthony McNeil refused to be found, McNeil refused to cooperate? This is New York City. Anybody believe when I come into the office at a quarter to eight there's a line outside, people saying pick me, can I be a witness to a robbery, can I face the man who had a gun, can I do that and put my life in jeopardy." Not only was there no evidence that McNeil had ever been threatened or expressed fear for his safety, but the prosecutor knew this was not the real reason McNeil did not testify. In a pretrial colloquy the week before his summation, the prosecutor told the court that the People had chosen not to call McNeil as a witness because McNeil was not able to identify the perpetrators. Since defendant allegedly approached McNeil from behind, the latter never had the opportunity to see his face during the robbery.
The false insinuation that defendant had intimidated McNeil was especially prejudicial in light of the prosecutor's previous impeachment of defendant's alibi witness, Jacqueline Charles. On cross-examination, he asked Charles if she had ever told detectives that she was only testifying on defendant's behalf because she was afraid of what he would do to her if she refused. When Charles denied it, the People called the detectives to testify that she had indeed told them that she feared defendant. In this context, the prosecutor's meretricious explanation for McNeil's absence served to portray defendant as a dangerous, violent person who had a propensity to intimidate witnesses.
A prosecutor may not "try to convey to the jury, by insinuation, suggestion or speculation, the impression that the defendant is guilty of other crimes not in issue at the trial" ( People v. Ashwal, supra, at 110 [reversing conviction where prosecutor in summation made a baseless suggestion that informant was not present as a witness because defendant had him killed]; People v. Norton, 164 A.D.2d 343, 356, affd 79 N.Y.2d 808 [reversible error for prosecutor to state, without any evidence, that complainant's recantation was based on threats from defendant]). Here, since the reason for McNeil's absence was irrelevant to the case, the prosecutor's explanation was probative of nothing but defendant's alleged criminal propensity and bad character ( see, People v. Schwartzman, 24 N.Y.2d 241, 247, cert denied396 U.S. 846). Moreover, the fact that the court may have sustained defense counsel's objection is not always sufficient to dispel the prejudice when there is a pattern of improper remarks by the prosecutor ( see, People v. Coates, 137 A.D.2d 192, 200-201, affd 74 N.Y.2d 244).
Nor was this the prosecutor's only prejudicial misstatement. Pursuant to the trial court's Sandoval ruling, the prosecutor was allowed to inquire into the underlying facts of a number of defendant's past convictions. All of his convictions were misdemeanors or youthful offender adjudications and none involved weapons or violence against another person. To attempt to explain or minimize this record, and also to show how the instant offense was not consistent with his profile, defendant testified that he had only become involved in these crimes in connection with his undercover work as a confidential informant and therefore had been given favorable plea bargains. The People contend that this testimony opened the door to the following remarks on summation:
"Here is a career criminal who has lived his entire life engaged in petit [sic] crimes. I suggest he has lived his entire life breaking the law. Here is a man before you who breaks the law with the same regularity that some people brush their teeth * * *
"I ask you, I implore you now, after your deliberations to say wrong, [defendant] it stops here. [Defendant], you can no longer plea bargain away every single thing you have done. You can no longer sell information and get out from under. You can no longer not answer for your actions. Once finally, and now here today you have to say to [defendant] stop. Stop it * * *
"Finally after all these years someone said no, [defendant], go to trial. No plea bargain. You're not going to get one in this case."
An objection to the final remark was sustained.
These remarks are flawed in several ways. First, there was no evidence that defendant, had sought a plea bargain and been turned down, as opposed to choosing freely to exercise his right to a trial. Second, the prosecutor essentially encouraged the jury to find defendant guilty not solely on the basis of the evidence at trial, but also because he had allegedly received insufficient punishment for his so-called "one man crime spree" in the past ( see, People v. Cancel, supra, at 499 [misrepresenting defendant's record]; People v. Clemons, 166 A.D.2d 363, 366 [prosecutor exceeded bounds of Sandoval ruling and appealed to jury's prejudices]).
It is improper for a prosecutor to use inflammatory language which appeals to the jury's sympathies and fears ( People v. Ortiz, supra, at 532). In this case, the prosecutor exploited the jury's fears that career criminals were abusing the criminal justice system through lenient plea bargains. These comments exceeded the bounds of propriety, repeatedly surging outside the evidence ( see, e.g., People v. Fogel, 97 A.D.2d 445, 446 [reversible error for prosecutor to tell jury, "`The only way to stop Hedda Fogel is at this time for you, the members of the jury, to find her guilty of the two charges before you'"]). The hyperbolic references to defendant's record went beyond any legitimate purpose and "unquestionably had a significant tendency to persuade the jury to consider the defendant as someone with a criminal disposition" ( People v. Cancel, supra, at 500). There was nothing in the defense summation to which the prosecutor's improprieties were responsive.
Although defense counsel's objections were not accompanied by a request for curative instructions or for a mistrial, the impropriety of the prosecutor's behavior warrants reversal ( People v. Butler, 185 A.D.2d 141, 144). While not all of the comments complained of on appeal have been preserved for review, this Court should review them in the interest of justice, given the serious prejudice to defendant ( supra, at 145).
There should be no doubt that a prosecutor, seeking a conviction at trial, has a duty to conduct himself in such a way as to assure the integrity of the trial itself and, thus, the ensuing verdict and judgment. This prosecutor failed to carry out that duty. It has long been settled that a prosecutor "is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice" ( People v. Fielding, 158 N.Y. 542, 547). "[H]is primary duty is to see that justice is done and the rights of all — defendants included — are safeguarded. There is a positive obligation on his part to see that a trial is fairly conducted" ( People v. Lombard, 4 A.D.2d 666, 671). We must be alert that a strong, or even "overwhelming," case not be substituted for a fair trial.