People v. Butler , 413 N.Y.S.2d 219 ( 1979 )

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 3, 1977, convicting him of attempted murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Improper and inflammatory remarks in the prosecutor’s summation, errors in the court’s charge and improper evidentiary rulings require reversal. It was error for the prosecutor to (1) dwell extensively upon the failure of an alibi witness to promptly report her evidence to either the police or the District Attorney since she has no such obligation (see People v Smoot, 59 AD2d 898); (2) denigrate his adversary’s personal attributes; (3) vouch for his own case; and (4) make an emotional appeal to the jury. The court was equally remiss in charging that the defendant must prove the truth of his alibi defense, omitting the burden of proof in this regard, and using the term "evenly balanced” scales. The court’s charge as to the presumption of innocence was similarly weak. In addition, the court improperly denied the request of defense counsel to have a diagram (drawn to scale) and photographs admitted into evidence. The objection of the prosecutor had no foundation in law and the court’s comment, in the presence of the jury, about distortion and failure to "convey the true picture”, was utilized by the prosecutor in summation in his argument that the defense was attempting to fool the jury. In sum, defendant was deprived of a fair trial. Titone, J. P., O’Connor, Shapiro and Martuscello, JJ., concur.