People v. Gorham 60 A.D.2d 892

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 6, 1975, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts, and new trial ordered. The totality of the circumstances in this case did not establish by clear and convincing evidence that there was an independent basis for the complaining witness’ in-court identification of the appellant (see United States v Wade, 388 US 218; Stovall v Denno, 388 US 293; Neil v Biggers, 409 US 188, 199-200; cf. Simmons v United States, 390 US 377). Moreover, some of the prosecutor’s comments during his summation, to the effect that an acquittal would be a mockery and travesty of justice, were gratuitous, and might have unduly prejudiced the jury (see People v Garcia, 40 AD2d 983). In view of this *893determination, we find it unnecessary to reach the other issues raised on this appeal. Hopkins, J. P., Latham, Suozzi and Margett, JJ., concur.