Opinion
Argued March 26, 1985
Decided April 4, 1985
Appeal from the Supreme Court in the Second Judicial Department, James P. Griffin, J.
Kenneth Rabb, Michael J. Obus and Matthew Muraskin for appellant.
Denis Dillon, District Attorney ( Peter R. Shapiro and Anthony J. Girese of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Term should be reversed and a new trial ordered.
The trial court, in its instructions, improperly removed from the jury's consideration all of the elements of the crimes charged except for that of identification. This error, preserved for our review by defense counsel's timely objection, his request for curative instructions and a motion made for a mistrial, deprived defendant of a fair trial, for "[n]o matter how conclusive the evidence * * * each of the * * * fundamental facts was for the jury to pass upon" ( People v Walker, 198 N.Y. 329, 334; see also, People v Steele, 26 N.Y.2d 526, 529). Although the admission by a defendant or his counsel of the existence of any of the elements of the crimes with which he was charged may have excused a court's removal of these elements from the jury's consideration ( see, People v Walker, supra, p 335; People v Brady, 16 N.Y.2d 186, 189-190) there was no such admission during the trial of this case.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur in memorandum.
Order reversed, etc.