Defendant has been convicted on sufficient evidence of criminally buying and receiving stolen property and criminally concealing and withholding stolen property.
I feel constrained to dissent from an affirmance of the conviction, not because of any disagreement with the verdict, but because of what I conceive to be an error in the charge and because of a highly improper and prejudicial statement made by the District Attorney in his summation, which was condoned rather than corrected by the trial court when proper objection was made.
Defendant was taken into custody on a Saturday at about midnight. He was not arraigned until Monday morning. In the meantime, he allegedly made statements to the District Attorney and to the detectives which amounted to a confession. No written statement was taken by the District Attorney, although he had a stenographer present, but the confession was introduced into evidence through the testimony of the detectives.
Defendant claimed that the alleged confession had been extracted from him by police beatings. The court properly charged the jury with respect to the possible invalidity of the confession because of the manner in which it might have been obtained. The court refused to charge, as requested, that the police officers had been guilty of unnecessary delay in arraigning the defendant. It did charge the jury as to the legal requirement of a prompt arraignment and left it for them to determine whether there was any unnecessary or unreasonable delay. The court then properly charged that the jury might consider any unnecessary or unreasonable delay as a circumstance in determining whether the alleged confession was voluntary.
*168The only" suggested explanation for the delay is that the detectives, with some semblance of co-operation from the defendant, were attempting to recover the stolen goods. It quite clearly appears, however, that the real reason for the delay was to give the detectives a rest after an all-night questioning of the defendant and to hold the defendant for further questioning at the convenience of the District Attorney. The detectives retired at eight o’clock Sunday morning and returned with the District Attorney to resume the questioning at three o’clock on Sunday afternoon. A part of the alleged confession was obtained in the subsequent questioning.
In my view the delay in arraignment was unnecessary and the jury should have been so advised by the court. The defendant could and should have been arraigned on Sunday moaning. The District Attorney, with commendable frankness, virtually concedes in his brief on appeal that the requested charge should have been given, citing People v. Snyder (297 N. Y. 81, 92), He argues, however, that defendant was not prejudiced by reason of the failure of the court to so charge, because the alleged beatings of which defendant complains were all administered prior to six o’clock in the morning, so there could be no connection between the delay and alleged police abuse coercing the confession.
The significance and possible prejudice in the delay cannot be so confidently dismissed. While it is true that an alleged confession had been obtained prior to six o ’clock in the morning, still that part of the confession which was obtained on Sunday afternoon, in response to the District Attorney’s questioning, was featured and emphasized in the cross-examination of the defendant by the District Attorney and in the District Attorney’s summation. Indeed, it is the handling of this part of the confession in the summation which constitutes the prejudicial impropriety warranting a new trial.
The confession given to the District Attorney was testified to by detective Omark. Neither the District Attorney nor his stenographer took the stand. Nevertheless, in his cross-examination of the defendant, the District Attorney, eliciting only denials or denials of recalling, harped upon the alleged statements of confession made to him when he questioned the defendant at the station house. Objection was made to this form of cross-examination. Such cross-examination was of questionable propriety under the circumstances, but was only a forerunner of what was to take place in summation.
*169In summation the District Attorney strove to give all possible weight to the confession made to him, and made the credibility of the testimony with respect to that confession a determining point of the case.
These were his words in summation: 1 ‘ Gentlemen, with all the sincerity at my command, I say to you that if that conversation did not take place, in your judgment, you stop right there. Don’t waste another ten seconds on this case. Come back and say that this defendant is not guilty. If that conversation did not take place, then I am an aider and abetter to Omark’s perjury. ’ ’
Counsel for the defendant objected, saying “ I don’t think he can support Omark’s testimony by his own unsworn argument.He is not on the stand.”
The court made the following statement and ruling: “ The purpose of summation is to discuss the evidence presented in the case and to draw such natural and logical inferences as can properly be drawn. Objection overruled.” An exception was taken.
Throwing the prestige of his own person and position into the balance was a weighted foul blow by the District Attorney. He pitted against the defendant not only the credibility of the sworn statement of detective Omark but also his own unsworn vouching for the credibility of that testimony and challenged the jury to disbelieve it at the pain of branding him an aider and. abetter of perjury.
Had the court administered the proper reprimand and sustained defense counsel’s objection, the unfortunate implication in the incident and any serious consequence might have been corrected and avoided. But instead, the court overruled the objection and by his accompanying comment gave standing to the statement of the District Attorney as legitimate argument.
I would not vote for a reversal in this case merely because of the court’s error, if it be such, in refusing to charge the jury as a matter of law that there was unnecessary delay in the arraignment of defendant, although it may be noted that some of the District Attorney’s most prized evidence was secured following that delay and it was that very evidence which was so turned to the disadvantage of the defendant in the objectionable part of the District Attorney’s summation. In my view, however, the verdict, though justified on the weight of evidence, should not be allowed to stand where such grave error as here occurred on summation was committed by counsel and compounded by the court.
*170It is more important to the administration of justice that the conduct of trials be free from prejudicial impropriety and that District Attorneys remain within the bounds of legitimate advocacy than it is to hold the conviction of a guilty defendant and avoid the burden of a new trial.
I vote to reverse the judgment and order a new trial.
Breitel and Botein, JJ., concur with Frank, J.; Peck, P. J., dissents and votes to reverse and order a new trial in opinion in which Bergan, J., concurs.
Judgment affirmed.