dissenting:
In voting to reverse, my two colleagues set themselves against a competent and eminently fair New York State Supreme Court Judge, five Appellate Division Judges, the Chief Judge of the New York Court of Appeals, and a United States District Court Judge, all of whom were satisfied that petitioner had a fair trial. Although I agree completely with my colleagues that appeals to racial prejudice have no place in a courtroom, I find no such appeal in this case I therefore cast my lot with the eight judges who felt the same way.
In Rose v. Mitchell, - U.S. - at page-, 99 S.Ct. 2993, at page 3001, 61 L.Ed.2d 739 (1979), Mr. Justice Blackmun said:
For we also cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole.
This was not a startling or unusual statement. Similar pronouncements have issued on countless occasions from the media, the pulpits of every church, and the courts; *421and, in many instances, the police have been the special target of criticism. See, e. g., J. Decker, Police Sensitivity and Responsiveness to Minority Community Needs: a Critical Assessment, 12 Valparaiso Law Review 467 (1978). It is unlikely that any juror could have avoided the influence of these constant reiterations.
In the light of all this, what calumny did the young prosecuting attorney utter which deprived petitioner of his constitutional right to due process? He suggested that the jury might take into consideration the fact that petitioner and the police witness were high school classmates and members of the same race. The majority say that this attempt to refute the defendant’s claim of frame-up and eliminate any possible claim of racial prejudice created a “distinct risk of stirring racially prejudiced attitudes.” I disagree. Unless mere reference to the obvious fact that both petitioner and the police officer were black is prejudicial per se, but see Iva Ikuko Toguri D'Aquino v. United States, 192 F.2d 338, 371 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952), the prosecutor’s remarks were not of such a nature as to foment racial prejudice against anyone.
It may be that if this were an appeal from one of our own district courts, we would find the prosecutor’s comments to be a digression from the proof. However, “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental fairness essential to the very concept of justice.’ ” Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974) (quoting Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941)). Unless there has been a “denial of fundamental fairness, shocking to the universal sense of justice”, Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942), this Court should not interfere with the state’s conduct of a criminal trial. When such denials occur, proof of their existence does not require erudite discussions of such things as group lines, frequencies, and percentages.1
I dissent.
. Since the foregoing was written, Judge Kearse has advanced several additional allegedly prejudicial considerations which the prosecutor’s remarks supposedly suggest. One relates to nonexistent white defendants and the other to a witness whose name was not even mentioned. With all respects to my learned colleague, I think she digs as deeply as does Judge Newman to find the shocking denial of fundamental fairness which warrants habeas corpus intervention by this Court.