People v. Branch

Appeal by defendant from a judgment of the Supreme Court, Queens County (Goldstein, J.), rendered June 20,1977, convicting him of burglary in the third degree and grand larceny in the third 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. Defendant was deprived of a fair trial due to the trial court’s improper statements to the jury during its charge that (1) a quorum of the 23 grand jurors handed down an indictment in the instant case (see People v Williams, 57 AD2d 876; People v Evans, 63 AD2d 653; cf. People v Fortt, 35 NY2d 921, revg 42 AD2d 859, on dissenting mem at App Div); (2) the jury’s failure to agree would lead to a hung jury which would result in a new trial “with tremendous expense to the State” (see People v Ali, 47 NY2d 920); and (3) “the question of punishment rests on *856the shoulders of this Judge. And you can be sure that my shoulders are big enough and broad enough to assume and carry that responsibility” (see People v Davis, 73 AD2d 693). Apart from any consideration of the evidence adduced at the trial, the above-mentioned errors are such that, taken together, they deprived defendant of a fair trial. Gibbons, J.P., Gulotta, Cohalan and Bracken, JJ., concur.