
    (October 9, 1973)
    The People of the State of New York, Respondent, v. George Attard, Appellant.
   On- the court’s own motion, its decision herein, dated August 13, 1973, is amended to read as follows: Appeal by defendant from a judgment of the Supreme Court, Kings County, dated December 15, 1972, which convicted him, on a jury verdict, of arson in the second degree. Judgment reversed, on the law and in the interests of justice, and a new trial granted. We are of the opinion that the summation of the Assistant District Attorney was both improper and highly prejudicial and denied defendant a fair trial (People v. Figueroa, 38 A D 2d 595). Further, the charge by the court concerning the presumption of innocence was confusing in that from it the jury could have been under the erroneous impression that the presumption of innocence obtains “ unless and until and only if the evidence convinces ” the jury of defendant’s guilt beyond a reasonable doubt (emphasis supplied; see People v. Rossi, 14 A D 2d 558). In light of our decision it is not necessary to rule on the claims regarding the posttrial motion for a new trial on the ground of newly discovered evidence. Suffice it to say that GPL 330.40 (subd. 2, par. [f]) requires that the hearing court make findings of fact. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.  