In this case the only witnesses who testified for the People were four police officers. The defendant called no witnesses nor did he take the stand in his own defense. In the course of the summation the District *334Attorney, emphasizing the alleged truthfulness of the testimony of the undercover policeman to whom a direct sale of narcotics was alleged to have been made by this defendant, said to the jury that such testimony was "uncontroverted and uncontradicted. There is nothing inconsistent. There is nothing which says 'No, that is not what happened.’” This certainly comes close to calling the attention of the jury to the fact that defendant did not take the stand to contradict what the officer had stated. (Griffin v California, 380 US 609; People v Gould, 25 AD2d 160; People v Yore, 36 AD2d 818.)
We are ready to concede that if these remarks of the prosecutor stood alone, while improper, the judgment below might well not have been disturbed. (People v Yore, supra.) As was said in the last cited case (p 818): "The only person who could have contradicted this testimony was the defendant. Hence the implications of the prosecutor’s comment tended to violate defendant’s rights under the Fifth Amendment of the United States Constitution [citing cases]. However, the court having made a timely intervention in clarification of the defendant’s constitutional privilege, we find this error harmless beyond a reasonable doubt.” There certainly was no clarification by the court in the case at bar. On the contrary, the court in charging the jury on the subject of interested witnesses addressed the jury as follows: "An interested witness is one who is personally concerned in the outcome of the litigation * * * the defendant would be an interested witness. [Emphasis supplied.]”
It is impossible to understand why this last sentence was necessary to give to the jury. Everyone knew the defendant had not taken the stand and by specifically referring to the defendant as an interested witness if he had taken the stand, which he did not, the court obviously must have caused some of the jurors, if not all, to wonder why he did not take the stand. It is difficult to believe that this resulted in no prejudice to the defendant. We are forced to the conclusion that defendant was indeed prejudiced in the eyes of the jury and was denied his constitutional rights to a fair trial. Therefore, since ordering a new trial does not release the defendant but merely insures that justice will be done, we conclude that there should be a reversal and a new trial held in the interests of justice.
We have noted that the majority has referred to the subsequent statement of the trial court to the effect that no refer*335ence was to be drawn from the failure of the defendant to take the stand. The damage had already been done and this subsequent statement did not help. In fact, it may have had the effect of emphasizing such failure to testify in the minds of the jurors.
Kupferman and Lane, JJ., concur with Stevens, P.J.; Birns and Capozzoli, JJ., dissent in opinion by Capozzoli, J.
Judgment, Supreme Court, Bronx County rendered on September 14, 1973, affirmed.