Opinion
January 25, 1993
Appeal from the Supreme Court, Kings County (Lagana, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered. The facts have been considered and determined to have been established.
The People's case against the defendant was based entirely upon circumstantial evidence. While the trial court's charge to the jury on circumstantial evidence was not a misstatement of the law, it failed to include language which clearly conveyed the concept that the evidence must exclude beyond a reasonable doubt every reasonable hypothesis but that of guilt (see, People v Ford, 66 N.Y.2d 428, 441-442; People v. Sanchez, 61 N.Y.2d 1022, 1024; People v. Perrotta, 121 A.D.2d 659; 1 CJI[NY] 9.05, at 471-475). Although we find that the proof of the defendant's conviction was legally sufficient to sustain the verdict, it was not overwhelming. Consequently, the trial court's failure to properly instruct the jury on the reasoning process to be followed in assessing the evidence cannot be considered harmless error, and reversal and a new trial are required, notwithstanding the defendant's failure to object to the charge (see, People v. Perrotta, supra; see also, People v Livingston, 157 A.D.2d 859; People v. Tsotselashvili, 135 A.D.2d 759; People v. Bernardo, 83 A.D.2d 1; People v. Vasquez, 47 A.D.2d 934). Mangano, P.J., Rosenblatt, Ritter and Santucci, JJ., concur.