MEMORANDUM. The instructions given by the court to the jury in an attempt to lead to agreement on a verdict do not, as a matter of law and in the absence of appropriate objection, require the reversal of the judgment of conviction. But in reviewing the fairness of the trial and in the exercise of a sound discretion in consideration of the facts, the Appellate Division may be justified in directing a new trial. The order appealed from, resting on the law, does not recite whether questions of fact and discretion were considered. For this reason, the order should be reversed and the case remitted to the Appellate Division for its consideration of questions of fact and discretion (Code Crim. Pro., §§ 543-a, 543-b; People v. Cohen, 5 N.Y.2d 282).
Judges BURKE, SCILEPPI, BERGAN and KEATING concur in memorandum; Chief Judge FULD and Judges VAN VOORHIS and BREITEL dissent and vote to affirm upon the opinion at the Appellate Division.
Order reversed and case remitted to the Appellate Division to pass upon questions of fact or discretion in accordance with the memorandum herein.