The defendant was deprived of his fundamental right to a fair trial by virtue of prejudicial speculative remarks made by the People in their summation, in an attempt to explain away the failure to find any evidence of the missing articles in the defendant’s possession. The Assistant District Attorney suggested that the defendant was aided in the commission of this crime by an accomplice or accomplices, whereas there was no basis in the record to support that theory. The court compounded the error when, after receiving three notes from the jury indicating its confusion with respect to the People’s theory, it declined a defense request to charge that no testimony or *234other mention had been adduced at trial concerning any accomplice involvement, other than in the summation, and the jury was therefore not to consider the question of an accomplice but was to be limited to the evidence. It in fact gave credence to the accomplice theory by indicating to the jurors that they might convict the defendant of criminal mischief even if they believed an accomplice and not the defendant had broken the window.
Both the prosecutrix and the court infringed upon and improperly influenced the fact finding function of the jury by supplying a scenario not fairly inferable from the record to explain away what might otherwise have been a troublesome point to the jury in its resolution of the issue of credibility as between the complainant and the defendant.
The complaining witness, 73-year-old Leo Kingoff, lived in a sixth floor walk-up in The Bronx and owned six dogs. At about 10 p.m. of the night of this incident he took three of them for a 30 minute walk. Shortly afterward, he walked the other three for about 45 minutes. When he went up the stairs to his apartment, he found the door ajar, and upon entering saw that the lights were on and his television set was on the floor near the door. He looked toward the bedroom and saw the defendant, his downstairs neighbor, emerge. Kingoff was holding the three metal chain leashes in his hand. He testified that he asked Hernandez what he was doing there, and, when Hernandez did not answer, he struck him in the head or face with the chains. Hernandez had a bulky object in his hand, which appeared to be a camera case, and he then struck Kingoff in the head with it and left the apartment. Kingoff called the police and looked around the apartment. He discovered that his fire escape window was broken and open and that a number of items were missing. When the police arrived shortly thereafter, they arrested Hernandez and searched his person and his apartment, finding none of the missing articles.
Hernandez testified that, as he left his apartment to go to the store, he' saw one of Kingoff’s dogs loose in the hallway. This was unusual and he took the dog up to the apartment. When he got there he saw that the door was open. He called out and when he received no answer he entered. He called Kingoff’s name several times. Seeing *235the bedroom light on he entered and noticed that the room was in disarray. He left the bedroom and was suddenly struck in the head. He was shocked and confused. He looked at the complainant and said, “Leo” and then walked out of the apartment. He had nothing in his hands nor did he strike Kingoff. He went back to his apartment, took off his blood stained shirt and washed his head with cold water. Shortly thereafter, the police came to his apartment and arrested him.
It is the province of the jury to determine credibility; whether to believe or disbelieve a defendant’s explanation of his conduct. The jurors must be given an untrammeled opportunity to do just that, without improper influence from such authoritative and commanding figures as the Assistant District Attorney and the court itself. Any so-called “scenario” suggested by the prosecution must have a basis in the record and not be made out of whole cloth.
The People maintain that the defense “opened the door” by its own comments in summation. Defense counsel had stated,
“all of this material, this fairly large bundle of material disappeared, was not found by the police or in Mr. Hernandez’ apartment, was not found under any stairwell, was not found in any attic or on any roof, was not found anyplace.
“And the only logical assumption why it wasn’t found anyplace, is that Mr. Hernandez didn’t take it. Somebody else took it and just kept going and walked away with it. Right?”
The Assistant District Attorney, for her part, responded, “Ladies and gentlemen, I submit to you that there were more people in the apartment with the defendant: someone stood at the window, three feet away from the fire escape; and someone stood on the fire escape and the property, easy enough to carry down or up the fire escape, was handed out to that other person who left before the defendant was able to, because he lived in the building and all he had to do was go downstairs.” and, “Again I submit that that’s where the property that Mr. Kingoff lost went, down the fire escape and up the fire escape, having been handed by the defendant to the person on the fire escape. And the defendant *236going to the door to pick up that T.V., to go downstairs to his apartment, but was surprised by the complainant, and when he came back too early for the defendant’s plan.” Such was an inappropriate response, where neither the theory of the People’s case nor one word of testimony referred to the presence of accomplices, but was rather the personal belief of the prosecutrix. It was a response out of keeping with the duties and responsibilities of a public prosecutor and an attempt to influence the jury in resolving the credibility issue in favor of the People’s witness. That the jury was influenced and was confused is evidenced by its three successive notes to the court concerning that same issue and by its quick verdict upon the court’s reply to the third note, in effect adopting the accomplice theory.
“It is fundamental that the jury must decide the issues on the evidence, and therefore fundamental that counsel, in summing up, must stay within ‘the four corners of the evidence’ * * * Thus the District Attorney may not refer to matters not in evidence * * * or call upon the jury to draw conclusions which are not fairly inferrable from the evidence” (People vAshwal, 39 NY2d 105,109-110). “Not only does a defendant have a constitutional right to a fair trial, but such right is fundamental to our whole system of jurisprudence. We hold that this defendant * * * was deprived of such a right by virtue of various remarks made in the course of the People’s summation and that he should have a new trial * * * The Assistant District Attorney had no right to refer to matters not in evidence or to ask the jury to draw such a conclusion which was not fairly inferrable from the evidence” (People v Wright, 41 NY2d 172, 173-175).
I further note that the evidence submitted appears insufficient as a matter of law to establish beyond a reasonable doubt that the complainant suffered physical injury within the meaning of subdivision 6 of section 120.05 and subdivision 9 of section 10 of the Penal Law, i.e., “impairment of physical condition or substantial pain”; or that the value of the stolen property exceeded $250, a prerequisite for conviction under subdivision 1 of section 155.30 of the Penal Law.
*237Kingoff testified that he had been struck on the head once by what appeared to be a camera case and was “a little stunned”. He then called the police and checked the apartment over while waiting for them. He developed a lump on his forehead and a slight headache for two or three days, which then went away. He had no other physical complaints about the incident and had no intention of going to the doctor until persuaded by the Assistant District Attorney. Dr. Ganem saw Mr. Kingoff four days after the incident, when he no longer had a headache or any marks on his head. He made his diagnosis of “concussion syndrome” from the history supplied by the patient.
It is evident that the injury does not come up to the level of “impairment of physical condition” (People v Morales, 75 AD2d 745; Matter of Derrick M., 63 AD2d 932) or “substantial pain” (Matter of Philip A., 49 NY2d 198) required by the statute for conviction under subdivision 6 of section 120.05 of the Penal Law.
No evidence was submitted as to the market value at the time of the theft of any of the various items alleged to have been stolen. Most of them had been purchased or received as gifts years before, many already used and many in damaged condition. No effort was made to properly catalog the missing items or to establish their market value as aggregating more than $250, the amount necessary for conviction of grand larceny in the third degree under subdivision 1 of section 155.30 of the Penal Law (People v Bell, 55 AD2d 624).
The judgment of the Supreme Court, Bronx County (Holland, J.), rendered April 23, 1981, convicting defendant-appellant, after trial, of burglary in the first degree, assault in the second degree, grand larceny in the third degree and criminal mischief in the fourth degree, and sentencing him to three concurrent indeterminate terms of imprisonment, the greatest of which is 5 to 15 years, should be reversed on the law and in the interest of justice, and should be remanded for new trial.
Sandler, J. P., and Asch, J., concur with Silverman, J.; Carro, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, rendered on April 23,1981, modified, on the facts, to the extent that the *238conviction of burglary in the first degree is to be changed to a conviction of burglary in the second degree under subdivision 2 of section 140.25 of the Penal Law, and the conviction for assault in the second degree is to be changed to a conviction for attempt to commit the crime of assault in the second degree under section 110.00 and subdivision 6 of section 120.05 of the Penal Law, and the case remitted to the Trial Term of the Supreme Court, Bronx County, with a direction that that court sentence the defendant accordingly; and the judgment is otherwise affirmed.