Mikoll, J. (dissenting). I find defendant’s contention of prosecutorial misconduct to have merit and, therefore, respectfully dissent.
Defendant claims that the prosecutor’s reference in his summation to the victims as "Kids. Your kids. My kids. Our Kids. The youth of America” was inflammatory and not fair comment on the evidence. Defendant’s objection to the comment was overruled. He urges also that the prosecutor’s further reference to the constitutional rights of the victims and the need to protect those rights constituted inappropriate commentary. Finally, defendant objects to the prosecutor’s comment on defendant’s failure to testify which was followed by curative instructions by County Court.
I do not, contrary to the majority’s assertion, deem the cited remarks to be fair response to defense counsel’s summation (see, People v Morgan, 66 NY2d 255, on remand 116 AD2d 919, cert denied 476 US 1120; People v Ashwal, 39 NY2d 105). I conclude, too, that in overruling defense counsel’s objection to the comments about "kids”, County Court magnified the error. The ruling gave judicial approval to inappropriate commentary directed at inflaming the jury. The prosecutor’s comments, made on several occasions, about protecting the civil rights of the children were also inappropriate and should not have been countenanced by the court. Most critical of all was the comment by the prosecutor about defendant’s failure to testify, wherein he said: "Counsel has told you that his client has spoken. He is not guilty. I would point out to you what is evidence in this case? * * * Testimony under oath. Did he tell you that under oath?” The evidence of guilt here was not overwhelming. It was based on the testimony of four young, troubled youths and defendant’s own Grand Jury testimony. The question of credibility was of great importance as no other evidence, physical or testimonial, had surfaced. The prosecutor’s comments on defendant’s failure to testify were *845egregious. The curative instructions were insufficient to correct the prejudice accruing to defendant. Defendant was denied a fair trial. The judgment should be reversed and the matter remitted for retrial on five counts of third degree sodomy and three counts of endangering the welfare of a child.
Ordered that the judgment is affirmed.