People v. Brown , 456 N.Y.S.2d 821 ( 1982 )

— Appeals by defendant from (1) a judgment (Indictment No. 166/78) of the Supreme Court, Richmond County (Bellard, J.), rendered January 12,1979, convicting him of robbery in the second degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence and (2) an amended judgment (Indictment No. 49/78) of the same court (Barlow, J.), rendered January 12, 1979, adjudicating him to be in violation of parole and imposing sentence. Amended judgment on Indictment No. 49/78 reversed, on the law, and matter remitted to the Supreme Court, Richmond County, for further proceedings consistent herewith. Judgment on Indictment No. 166/78 reversed, on the law, and as a matter of discretion in the interest of justice, and new trial ordered. Defendant’s convictions ¿rise out of the taking of $2 worth of food stamps from the complaining witness Kevin Burnside. Burnside testified that he was going shopping with his brother for his mother when he was stopped by a group of boys. Michael Price came up to him and asked him if he had any money. According to the complaining witness, the defendant came out from behind a building and asked the crowd, “What’s going on?” When someone in the crowd responded, “He has money in his pocket”, the defendant grabbed Burnside’s arms and held them behind his back while Michael Price stood in front of him and took his food stamps. The boys then ran away. Twelve-year-old Bruce Lawrence was the.only other eyewitness called to testify on behalf of the People. His testimony completely contradicted the testimony of the complaining witness. According to Lawrence, who was standing across the street from the incident, it was Michael Price and not the defendant who grabbed the complaining witness. The defendant was the individual who took the food stamps. Lawrence’s testimony also contradicted that of the complaining witness regarding the number of people involved. Lawrence said there was no one else around, the complaining witness testified that a group of boys surrounded him. Furthermore, Lawrence testified that the incident took about 10 to 20 minutes while the complaining witness testified it took about 2 to 3 minutes. Despite the inconsistencies in the trial testimony, we are unable to conclude as a matter of law that the evidence of identification was legally insufficient to sustain defendant’s conviction (see People v McCann, 90 AD2d 554; People v Kidd, 76 AD2d 665). Nevertheless, certain errors in the trial, when considered together and viewed in light of the conspicuous disparity in the testimony of the two eyewitnesses, persuade us that defendant was denied a fair trial. The testimony of Police Officer Franconeri, to the effect that he arrested the defendant pursuant to a conversation he had with the complaining witness, constituted improper bolstering (see People v Johnson, 57 NY2d 969; People v Trowbridge, 305 NY 471) which cannot be overlooked inasmuch as the evidence of identification was not “clear and strong” (see People v Mobley, 56 NY2d 584, 585). Furthermore, we find that the prosecutor acted improperly during his summation. Over vigorous and numerous objections by defense counsel and notwithstanding the trial court’s admonition to the prosecutor to disregard defense counsel’s opening statement, he continually commented upon defense counsel’s failure to prove certain things he had mentioned in his opening statement. We have held in the past that such conduct is improper inasmuch as the prosecutor is, in effect, suggesting to the jury that the defendant had the burden of proving his innocence (see People v Knatz, 76 AD2d 889). We cannot say that the implications of the prosecutor’s statements were erased from the minds of the jurors by the trial court’s curative instructions in light of the prosecutor’s persistent attempts to avoid the adverse rulings of the trial court. Thus, reversal is required despite the court’s instructions (see People v Perez, 90 AD2d 468; People v Lindo, 85 AD2d 643, 644-645; People v Mejias, 72 AD2d 570, 571). In light of our reversal of defendant’s convictions of Indictment No. 166/78, the amended judgment on Indictment No. 49/78, adjudicating defendant in violation of parole should be vacated and the matter remanded for a new hearing to determine whether the underlying facts, rather than the convictions themselves, support a finding of a probation violation. Titone, J. P., Lazer and Gibbons, JJ., concur.