Opinion
April 12, 1990
Appeal from the Supreme Court, New York County (Allen Murray Myers, J.).
In the case at bar, the court marshaled the evidence in a prejudicial and uneven manner, improperly favoring the People. (See, e.g., People v. Hall, 155 A.D.2d 344 [1st Dept 1989]; People v. Roman, 149 A.D.2d 305 [1st Dept 1989]; see generally, People v. Bell, 38 N.Y.2d 116, 121.) Moreover, the court exacerbated the error by telling the jury, "I am not entirely clear what the defense to this action is, I am not going to characterize it in any way. You heard it and you have to determine for yourself what it is."
Furthermore, in charging the jury regarding identification, the court provided an illustration which improperly bolstered the testimony of the People's witnesses. (See, People v. Hall, supra; People v. Roman, supra; People v. Lane, 143 A.D.2d 581, 582.) Finally, in this case where the defense presented no evidence at trial, the court's reasonable doubt charge included the remark "you must review all of the evidence in this case, accepting that which you believe to be truthful and rejecting that which you believe to be false, if indeed you believe that any of it is false" (emphasis added). This diminution of the People's duty to prove defendant guilty beyond a reasonable doubt constituted error. (People v. Roman, supra, 149 A.D.2d 305, 306.)
Because these errors served to deprive defendant of his constitutional right to a fair trial, we reverse and remand for a new trial.
Concur — Kupferman, J.P., Carro, Milonas, Wallach and Smith, JJ.