People v. Vizcaino

71 A.D.2d 934 | N.Y. App. Div. | 1979

—Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 6, 1978, convicting him of assault in the second 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. The trial court charged the jury, in part, that "After listening to all of the testimony are you convinced beyond a reasonable doubt that this defendant is an innocent man. If he is, walk him right out that door, find him not guilty.” While curative instructions were given subsequently, they did not overcome the prejudice resulting from this statement. Moreover, the charge was laced with comments which tended to convey to the jury that the trial court did not believe the defendant’s version of the occurrence. In our opinion, defendant was deprived of a fair trial. Mollen, P. J., Hopkins, Damiani, Titone and Shapiro, JJ., concur.