People v. Montalvo , 509 N.Y.S.2d 66 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 8, 1982, convicting him of robbery in the second degree, burglary in the third degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant is entitled to a new trial on the ground that the prosecutor, in his summation, and the trial court in its charge to the jury, improperly commented upon the defendant’s failure to testify and to call witnesses in his own behalf (see, CPL 60.15 [2]; People v Brown, 91 AD2d 615; People v La Susa, 87 AD2d 578; People v Abreu, 74 AD2d 876). While these errors were not preserved for review as a matter of law (see, People v Hoke, 62 NY2d 1022), given the magnitude of the errors and the less than overwhelming evidence of guilt, the interest of justice mandates reversal. To the extent that the defendant’s other contentions, including those raised in his pro se brief, have been preserved for our review, we find them to be without merit. Lazer, J. P., Mangano, Lawrence and Kooper, JJ., concur.