Opinion
May 25, 1983
Appeal from the Monroe County Court, Barr, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Green, JJ.
Judgment unanimously reversed, as a matter of discretion in the interest of justice, and a new trial granted. Memorandum: Defendant was deprived of a fair trial because of the cumulative impact of the following errors ( People v Johnson, 89 A.D.2d 506; People v Dowdell, 88 A.D.2d 239). The prosecutor repeatedly forced the defendant to characterize the police witnesses as lying, speaking untruths, wrong or mistaken. Such conduct is, of course, entirely improper and highly prejudicial to the defendant (see People v Galloway, 54 N.Y.2d 396, 400; People v Guidice, 83 A.D.2d 756; see, also, People v Bailey, 58 N.Y.2d 272). Additionally, the court twice advised the jury that sufficient evidence had been presented for them to reach a verdict, thus creating "the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive" ( People v Mendes, 3 N.Y.2d 120, 121; see, also, People v Bell, 38 N.Y.2d 116, 120). Most prejudicial, however, was the court's inclusion of a Sandstrom charge (see Sandstrom v Montana, 442 U.S. 510) both in its initial instructions and when the jury returned for reinstruction on the definition of intent. The court categorically stated that a person intends the natural and probable consequences of his act. The Sandstrom instruction was clearly not harmless error (see Connecticut v Johnson, 460 US ___, 103 S Ct 969) inasmuch as it created a conclusive presumption of intent. Although it was neither objected to at trial nor raised on appeal, the record clearly indicates that the jury was affected by the charge. We therefore reverse the judgment of conviction as a matter of discretion in the interest of justice (see CPL 470.15, subd 6).