I, too, am for reversal but on the ground that the prosecutor’s remarks on summation were so prejudicial as to deny the defendant a fair trial and thereby violate the demands of due process. As the court declared in People v. Mleczko (298 N. Y. 153, 163), “Vicious though the crime was, convincing though the evidence of guilt may seem to be, we could affirm only if we were to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt. We are not prepared to announce such a doctrine. (See People v. Marendi [213 N. Y. 600], supra, p. 620.) It is for jurors, not judges of an appellate court such as ours, to decide the issue of guilt. ” (See, also, People v. Damon, 24 N Y 2d 256, 260.)
Judges Burke, Jasen and Gabrielli concur with Judge Breitel ; Judge Wachtler dissents and votes to reverse in an opinion in which Judge Jones concurs; Chief Judge Fuld dissents and votes to reverse in a separate opinion.
Order affirmed.