Opinion
August 10, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County (Goldstein, J.), rendered June 20, 1977, convicting him of burglary in the third degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant was deprived of a fair trial due to the trial court's improper statements to the jury during its charge that (1) a quorum of the 23 grand jurors handed down an indictment in the instant case (see People v. Williams, 57 A.D.2d 876; People v. Evans, 63 A.D.2d 653; cf. People v. Fortt, 35 N.Y.2d 921, revg 42 A.D.2d 859, on dissenting mem at App. Div.); (2) the jury's failure to agree would lead to a hung jury which would result in a new trial "with tremendous expense to the State" (see People v. Ali, 47 N.Y.2d 920) ; and (3) "the question of punishment rests on the shoulders of this Judge. And you can be sure that my shoulders are big enough and broad enough to assume and carry that responsibility" (see People v. Davis, 73 A.D.2d 693). Apart from any consideration of the evidence adduced at the trial, the above-mentioned errors are such that, taken together, they deprived defendant of a fair trial. Gibbons, J.P., Gulotta, Cohalan and Bracken, JJ., concur.