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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Andre COTTON, Appellant.

Decided: September 22, 1997

Before ROSENBLATT, J.P., and THOMPSON, PIZZUTO and ALTMAN, JJ. Gary Cohen, Brooklyn, for appellant. Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie, Thomas S. Burka, and Sharon Topper, of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (J. Goldberg, J.), rendered January 31, 1994, convicting him of manslaughter in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

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

 The hearing court properly declined to suppress the gun recovered as a result of the arresting officer's inquiry concerning its location.   The officer's inquiry was justifiable for safety reasons and did not violate the defendant's constitutional right against self-incrimination (see, New York v. Quarles, 467 U.S. 649, 658-669, 104 S.Ct. 2626, 2632-2639, 81 L.Ed.2d 550;  see also, People v. Palumbo, 209 A.D.2d 551, 619 N.Y.S.2d 624).

While the prosecutor's attack on the defendant's justification defense during summation was not objected to at trial, we nevertheless feel compelled, under the circumstances of this case, to reach the issue in the exercise of our interest of justice jurisdiction and to reverse (see, People v. Jackson, 143 A.D.2d 363, 532 N.Y.S.2d 303).

 As the Court of Appeals noted in People v. Pelchat, 62 N.Y.2d 97, 105, 476 N.Y.S.2d 79, 464 N.E.2d 447, the prosecutor “is charged with the duty not only to seek convictions but also to see that justice is done” and “owes a duty of fair dealing to the accused and candor to the courts”.   The interest of justice is disserved when, as here, a prosecutor during summation advances a theory premised on a fact that he knows to be false in order to discredit the defendant's justification defense (see, People v. Lantigua, 228 A.D.2d 213, 643 N.Y.S.2d 963).   It is undisputed that the prosecutor knew that the .32 caliber gun, which the defense contended the decedent aimed at the defendant, was inoperable.   Yet, in attacking the defendant's justification defense, the prosecutor argued on summation that if the decedent had drawn a gun as the defendant contended, the defendant would not have had time to turn around, take two or three steps, receive a gun from someone in the crowd, turn back and fire four bullets before the decedent was able to fire a single shot.   This blatant misrepresentation of the facts as known to the prosecutor went to the heart of the defendant's justification defense, a defense which the prosecutor was obligated to disprove beyond a reasonable doubt.   Reversal is required because the prosecutor's misconduct in summation may very well have tipped the scales against the defendant, especially in light of the less than overwhelming evidence of the defendant's guilt (see, People v. Tolbert, 198 A.D.2d 132, 603 N.Y.S.2d 844;  People v. Nieves, 186 A.D.2d 276, 588 N.Y.S.2d 305).   Because the prosecutor's misconduct was flagrant and closely related to the credibility issue presented at trial, the defendant's case was substantially prejudiced (see generally, People v. Elder, 207 A.D.2d 498, 615 N.Y.S.2d 915;  People v. Dombrowski, 163 A.D.2d 873, 558 N.Y.S.2d 401).

The defendant's remaining contentions are either without merit or are rendered academic in light of our determination.


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