
    The People of the State of New York, Respondent, v Fernando Vargas, Appellant.
   Judgment, Supreme Court, Bronx County, rendered June 29, 1973, convicting the defendant of manslaughter in the first degree and possession of a weapon as a felony, unanimously reversed, on the law and in the interests of justice, and a new trial directed. Defendant had been the victim of an attempted robbery by Lopez and Delgado. Defendant returned with his cousin Alicea. Alicea was carrying a black pistol inside a brown bag. Delgado ran into a building and Lopez was following. Lopez was shot and Delgado, looking out of a second-story window, saw Alicea in front of the building pointing the same gun as Delgado had seen previously. Vargas and Alicea were tried jointly. We have sustained the conviction of Alicea (46 AD2d 322) despite the clear prosecutorial misconduct in the trial of that case. The testimony patently believed by the jury discounted the contentions related to self-defense interposed at the trial, and it appears clear therefrom that it was Alicea who actually "pulled the trigger” resulting in the death of Lopez. As to Alicea, therefore, even in the face of the overzealousness of the prosecutor, affirmance of his conviction was warranted (People v Crimmins, 36 NY2d 230; cf. People v Ketchum, 35 NY2d 740). However, using the factual pattern involving Alicea as a standard of comparison, the facts inculpating Vargas cannot be held to be similarly overwhelming so as to offset or discount prosecutorial misconduct; it cannot be said therefore that, absent that misconduct, a different conclusion might not have been reached by the jury. We have therefore reversed the conviction of Vargas and directed that a new trial be held. Concur — Markewich, J. P., Murphy, Tilzer, Lane and Lynch, JJ.  