DECISION ORDER
ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
The prosecutor's mischaracterization of the defendant's testimony, which was intended to convince the jury that the defendant had admitted his guilt when in fact he had not, constituted a gross distortion, the magnitude of which was highly prejudicial ( see, People v. Romain, 137 A.D.2d 848; People v. Pauli, 130 A.D.2d 389). The error cannot be deemed harmless, as the proof of the defendant's guilt, while legally sufficient to support his conviction, was not overwhelming.
JOY, GOLDSTEIN, and SCHMIDT, JJ., concur.
SANTUCCI, J.P., dissents and votes to affirm the judgment of conviction, with the following memorandum:
In order to preserve a challenge to opposing counsel's comments during summation, a defendant must object to the remarks, seek curative instructions, or move for a mistrial ( see, CPL 470.05; People v. Yates, 207 A.D.2d 567). In this case, the defendant made only one, generalized objection to the prosecutor's comments that his testimony constituted an admission of the crime. Accordingly, the issue is unpreserved for appellate review ( see, People v. Nuccie, 57 N.Y.2d 818; People v. Acevedo, 156 A.D.2d 569).
Furthermore, contrary to the majority's conclusion, the evidence against the defendant was overwhelming, and a review of the summation comments in the exercise of our interest of justice jurisdiction is therefore not warranted ( see generally, People v. Crimmins, 36 N.Y.2d 230; People v. Ingram, 258 A.D.2d 533 [2d Dept., Feb. 8, 1999]; People v. Fleury, 106 A.D.2d 460).