
    The People of the State of New York, Respondent, v Willie Davis, Appellant.
   Appeal by defendant (1) from a judgment of the Supreme Court, Kings County, rendered October 4, 1973, convicting him of attempted murder and criminal possession of dangerous weapons, etc., as a felony, upon a jury verdict, and imposing sentence and (2) (by permission) from an order of the same court, entered December 10, 1974, which, after a hearing, denied his motion to set aside the verdict. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Appeal from the order dismissed as academic in view of our disposition on the appeal from the judgment. It was improper for the Assistant District Attorney to intimate to the jury that vital evidence was being withheld from it because of the rules of evidence (see People v Jackson, 7 NY2d 142; People v Wilson, 40 AD2d 839), as well as to dwell excessively on the seriousness of the stepdaughter’s injuries in order to excite the jury to take vengeance upon the defendant. Christ, Shapiro and Titone, JJ., concur; Martuscello, Acting P. J., and Hawkins, J., dissent and vote to affirm the judgment and order.  