         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1154
KA 09-01022
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD EPOLITO, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD EPOLITO, DEFENDANT-APPELLANT PRO SE.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C.
AZZARELLI OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 15, 2009. The judgment
convicted defendant, upon a jury verdict, of robbery in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed as a matter of discretion in the interest of
justice and on the law and a new trial is granted.

     Memorandum: On appeal from a judgment convicting him, upon a
jury verdict, of robbery in the second degree (Penal Law § 160.10 [2]
[a]), defendant contends in his main and pro se supplemental briefs
that he was deprived of a fair trial based on, inter alia,
prosecutorial misconduct on summation. Although that contention is
not preserved for our review (see CPL 470.05 [2]), we nevertheless
exercise our power to review it as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). During summation, the
prosecutor improperly vouched for the credibility of prosecution
witnesses (see People v Lyon, 77 AD3d 1338, 1139, lv denied 15 NY3d
954; People v Tolbert, 198 AD2d 132, 133, lv denied 83 NY2d 811). We
reject the People’s contention that the prosecutor’s comments during
summation were a proper response to the summation of defense counsel
(cf. People v Halm, 81 NY2d 819, 821). We therefore agree with
defendant that the cumulative effect of the prosecutor’s improper
comments during summation deprived defendant of his right to a fair
trial, requiring reversal (see People v Pagan, 2 AD3d 879, 880).

     Defendant further contends in his main brief that Supreme Court
erred in denying his motion to suppress the testimony related to his
identification on the ground that the photo array was unduly
                                 -2-                          1154
                                                         KA 09-01022

suggestive. We reject that contention. Although defendant’s photo
was the only one in the array showing a man with “salt-and-pepper”
hair, the other photos showed men who appear to be of the same race
and who had facial characteristics that were similar to those of
defendant (see People v Corchado, 299 AD2d 843, 844, lv denied 99 NY2d
851). Defendant’s contention in his main brief with respect to the
jury instruction is not preserved for our review (see CPL 470.05 [2];
People v Gray, 86 NY2d 10, 19), and we decline to exercise our power
to review that contention as a matter of discretion in the interest of
justice (see CPL 470.15 [6] [a]).

     In light of our decision to grant a new trial, we do not address
defendant’s remaining contentions in his main and pro se supplemental
briefs.




Entered:   December 21, 2012                    Frances E. Cafarell
                                                Clerk of the Court
