We reverse in the interest of justice because the prosecutor's ad hominem remarks during summation, directed at defense counsel, so overstepped the bounds of permissible comment that appellant was denied a fair trial.
During summation, a prosecutor may respond to defense counsel's summation, but it is improper to mischaracterize the defense and impugn the defense counsel's integrity. (People v Galloway, 54 N.Y.2d 396, 398; People v Matthews, 33 A.D.2d 679; People v Ortiz, 116 A.D.2d 531 [1st Dept 1986].) Here, the prosecutor exceeded permissible bounds by calling the defense counsel's arguments "worthless", and vouching for his argument that the defense was a fabrication. At one point he stated, "There is a lot of fabrication going on in this courtroom but it is not coming from the witness stand, I swear to you." Counsel's integrity was not at issue, and it was, accordingly, highly inappropriate to urge that counsel was attempting to mislead the jury. (People v Steinhardt, 9 N.Y.2d 267, 271.) In light of the prosecutor's comment that certain testimony went uncontradicted, he should not have offered his personal assurance that the testimony he produced was credible. (People v Petrucelli, 44 A.D.2d 58.)
Based on the prosecutor's improper summation, the appellant was denied his due process right to a fair trial.
Appellant's motion to enlarge the record is denied as moot.
Concur — Murphy, P.J., Wallach, Asch, Kassal and Smith, JJ.