in a memorandum as follows: I concur in the majority’s dismissal of the count of the indictment charging defendant with criminal possession of a controlled substance but would also reverse and remand for a new trial on the attempted murder charge by reason of the prejudicial nature of the prosecutor’s summation, which deprived defendant of a fair trial.
In summation, the Assistant District Attorney, in marshaling the evidence, made the following statements:
"And then he [defendant] realized how stupid and he runs upstairs and that’s when the thinking starts setting in. Remember the testimony Joseph said that one of them was on the phone to the lawyer about not searching the apartment. Very smart.
"Did you notice that the gun, the nine mil[l]imeter had no powder residue, no discharge? He cleaned it. Very smart. The other guns, the two of them had evidence of discharge. Isn’t that curious? The other two guns are dirty. Yet this one particular gun is cleaned. That’s another thing I thought counsel might hit on. It was recovered fully loaded, therefore it couldn’t have been fired? Surprised he didn’t mention that. Roosevelt had a lot of nine mil[l]imeter ammunition. He reloaded the gun. So when it was found it was no evidence of discharge. There was no round of ammunition missing.
"Very intelligent act and very deliberate; the same type of man is calling to a lawyer while the cops are knocking on the door. ” (Emphasis added.)
*113These remarks urging the jury to infer consciousness of guilt by reason of the defendant’s exercise of his fundamental right to consult a lawyer were improper and deprived the defendant of a fair trial.
While defendant raised no contemporaneous objection to these comments, he did raise the issue in a CPL article 330 motion. In any event, this court may, and should, consider this fundamental issue in the interest of justice. (CPL 470.15 [6] [a]; see, People v Christman, 23 NY2d 429; People v Artis, 67 AD2d 981.)
A citizen’s right to interpose an attorney between himself and the "awesome power of the sovereign has long been a cherished principle”. (People v Settles, 46 NY2d 154, 160.) The ability to exercise this right when the police are at one’s door seeking entry is a fundamental underpinning of liberty in a free society.
For the prosecutor to impugn the defendant for exercising this right was highly improper. To arouse the jury to question defendant’s innocence because he consulted an attorney in these circumstances was seriously prejudicial. That a defendant’s silence, whether during police interrogation or in failing to testify during trial, may not be used against him by the prosecution is so firmly embedded in our law as to need no extended comment. (Griffin v California, 380 US 609; People v Von Werne, 41 NY2d 584; People v Christman, 23 NY2d 429, supra.) Prosecutorial comment on a defendant’s exercise of his right to consult an attorney is no less damaging to the constitutional safeguards against self-incrimination than the proscribed references to a defendant’s silence.
It is clear that the remarks in summation, concerning the defendant’s speaking with a lawyer while the police were at his door, were solely calculated to impress the jury with defendant’s consciousness of guilt and in my judgment deprived defendant of a fair trial. This court has criticized similar references in summation. (People v Perez, 90 AD2d 468.) In light of the less than overwhelming evidence of guilt in this case, the error cannot be considered harmless (cf. People v Crimmins, 36 NY2d 230; People v Von Werne, supra) and a new trial should be held on the remaining charge of attempted murder.