People v. Mollica

Appellate Division of the Supreme Court of the State of New York

Dec 27, 1999

Versions:267 A.D.2d 479

700 N.Y.S.2d 759

1999 N.Y. App. Div. LEXIS 13282

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (J. Goldberg, J.), rendered December 4, 1997, convicting him of robbery in the third degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.

As correctly conceded by the People, the Supreme Court erroneously instructed the jury on the charge of robbery by defining its elements following opening statements, and again before closing statements (see, CPL 260.30, 270.40). The court’s instructions created the possibility of premature deliberations by the jury (see, People v Townsend, 67 NY2d 815). The error cannot be considered harmless because it deprived the defen*480dant of a fair trial (see, People v Crimmins, 36 NY2d 230; CPL 470.15 [6] [a]).

In light of the foregoing determination, we need not address the defendant’s remaining contention. Sullivan, J. P., Friedmann, Feuerstein and Smith, JJ., concur.