Opinion
Submitted November 16, 1999
December 27, 1999
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.
M. Sue Wycoff, New York, N.Y. (Cynthia Colt of counsel), for appellant.
William L. Murphy, District Attorney, Staten Island, N.Y. (Karen F. McGee and Jillian S. Harrington of counsel), for respondent.
THOMAS R. SULLIVAN, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
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 N.Y.2d 815 ). The error cannot be considered harmless because it deprived the defendant of a fair trial (see, People v. Crimmins, 36 N.Y.2d 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.