Opinion
June 5, 1995
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
On appeal, the defendant contends, inter alia, that the hypothetical examples the court used to illustrate the concept of intent during its supplemental charge were biased in favor of the prosecution. We agree. Although a trial court is not precluded from supplying hypothetical examples in its instructions to the jury as an aid to explaining the applicable law (see, People v. Wise, 204 A.D.2d 133; People v. Fagan, 166 A.D.2d 290), such hypotheticals must be fair and balanced and must not indicate to the jury that the court has an opinion as to the defendant's guilt or innocence (see, People v. Hommel, 41 N.Y.2d 427; People v. Bell, 38 N.Y.2d 116; People v. Johnson, 171 A.D.2d 532). Here, the hypotheticals provided by the court during its supplemental instruction were so unbalanced that they effectively instructed the jury to infer that the defendant intended to sell the narcotics which were in his possession. Accordingly, the judgment must be reversed and a new trial ordered (see, People v O'Brien, 77 A.D.2d 633).
Reversal of the defendant's conviction is also warranted because the trial court's Allen charge, in language virtually identical to that which was condemned by the Court of Appeals in People v. Antommarchi ( 80 N.Y.2d 247), impermissibly shifted the burden of proof by implicitly imposing on the defendant the burden of supplying the jurors with the arguments they needed to legitimize their votes to acquit. Although this issue is unpreserved for appellate review, we deem it appropriate to address it in the interest of justice because a note from the jury reveals that it erroneously believed that the lone juror voting for acquittal was required to provide a reason for doing so.
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Bracken, J.P., Copertino, Krausman and Florio, JJ., concur.