Opinion
December 6, 1971
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 23, 1970, convicting him of burglary in the third degree, upon a jury verdict, and sentencing him to an indeterminate prison term with a maximum of five years. Judgment reversed, on the law and in the interests of justice, and new trial ordered. The findings of fact below have not been considered. In our opinion, the interests of justice require a new trial. Prejudicial error occurred in the course of the charge to the jury by the learned Trial Justice's remarks that "whatever happened here is a typical example of burglary" and that "this defendant was seen in possession of the television" claimed to have been taken from the complainant's home. Such statements concerning material facts in issue invaded the province of the jury ( McKenna v. People, 81 N.Y. 360; People v. Kohn, 251 N.Y. 375), even if the court in other portions of the charge left the resolution of disputed questions of fact to the jury ( People v. Stewart, 25 A.D.2d 483). Where, as at bar, the balance and weight of evidence were in sharp conflict, it is likely that the stated opinion of the Trial Judge on facts in issue "or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive" ( People v. Mendes, 3 N.Y.2d 120, 121; People v. Schatz, 37 A.D.2d 584, 585). Where, as here, reversal is mandated by the interests of justice, defendant's failure to take exceptions to the court's charge or to request a further charge or clarification presents no impediment to reversal by an appellate court ( People v. Kelly, 12 N.Y.2d 248; People v. Jones, 32 A.D.2d 1069). Rabin, P.J., Latham, Shapiro, Gulotta and Brennan, JJ., concur.