Appeal by defendant from a judgment of the County Court, Queens County, rendered May 19, 1959, after a jury trial, convicting him of burglary in the third degree and petit larceny and sentencing him to serve an indefinite term. Defendant is presently at liberty, on bail, by virtue of a certificate of reasonable doubt issued April 25, 1960. Judgment reversed on the law and the facts, and new trial granted. In instructing the jurors as to the right and duty of each individual member of the jury to reach his own determination on the evidence, the Trial Justice made an unfortunate choice of language which could have given the jurors the erroneous understanding that defendant's innocence must appear beyond a reasonable doubt. Notwithstanding that here such instruction may not be reviewed as an error of law (cf. People v. Cohen, 5 N.Y.2d 282, 290), we are of the opinion that under all the circumstances justice requires a new trial, particularly since the People's case is dependent upon proof of identification by a single witness. (Code Crim. Pro., § 527.)
Ughetta, Kleinfeld, Christ and Pette, JJ., concur; Beldock, Acting P.J., dissents and votes to affirm, with the following memorandum:
In my opinion, the identification of the defendant and his proffered alibi present pure questions of fact. As to the erroneous charge, not only did defendant fail to take exception to it, but he affirmatively acquiesced in it. Under all the circumstances such error did not affect any substantial right of the defendant and must be disregarded (Code Crim. Pro., § 542).