Judgment, Supreme Court, New York County (Edward J. Greenfield, J.), rendered February 14, 1985, convicting defendant after a jury trial of murder in the second degree and sentencing him to an indeterminate term of 15 years to life imprisonment, reversed, on the law and as a matter of discretion in the interest of justice, the conviction is vacated, and the case is remanded for a new trial.
The defendant was convicted after a jury trial of murder in the second degree and sentenced to an indeterminate prison term of 15 years to life.
Of the several issues raised on this appeal by the defendant, the most important one in our view is presented by defendant’s claim that the trial court’s detailed review and analysis of the evidence in the charge exceeded the limits implicit in the governing statute, and that parts of the court’s factual analysis could have improperly influenced the jury’s consideration of the facts. A second issue meriting discussion is presented by defendant’s claim that it was error to admit evidence that the police were assisted in locating and identifying the defendant by information received from an unidentified person on the basis of a description of the then unknown assailant in a television program.
On August 22, 1983, at about 6:30 p.m., in the neighborhood of Lexington Avenue and 99th Street, the deceased, Charles Jones, died shortly after he was stabbed by someone with whom he had been engaged in a heated argument extending over a period of time, involving the exchange of abusive remarks, shoving, and perhaps punches. The relevant events [451]*451were observed by three witnesses who testified at the trial, all of whom knew the deceased. There was evidence that just prior to the stabbing, the assailant, exhibiting a knife, said he would stab the deceased, and the deceased responded in substance that his adversary did not have "the heart” to do it.
One witness, Jane Boyd, observed the event from her 12th floor window. Two others, Emilio and Kathleen Cotto, brother and sister, 14 and 15 years old, respectively, at the time, observed the incident from different vantage points on the street.
On April 19, 1984, the defendant was identified in lineups by Emilio and Kathleen Cotto. Emilio Cotto, who testified that he had previously seen in the neighborhood the person who had stabbed Jones, stated at the time of the lineup that he was 80% certain of the identification. His sister Kathleen stated that she was absolutely certain.
The reliability of the identifications was significantly enhanced by the fact that the stabber had been observed to have an extended distinctive scar on his cheek, that the defendant had such a scar, and that he was identified by the two witnesses notwithstanding the fact that strips of tape had been applied to his cheek covering the scar as well as to the same part of the cheeks of the other lineup participants.
Turning to the defendant’s claim that he was unfairly prejudiced by the detailed analysis of the evidence in the court’s charge, discussion of the issue appropriately starts with consideration of CPL 300.10 (2). In relevant part, the subdivision provides with regard to the charge that the court must state "the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation.”
The background to this statutory language was succinctly explained in Bellacosa, Practice Commentary (McKinney’s Cons Laws of NY, Book 11A, CPL 300.10, at 532), where it was pointed out that it had become the practice previously, on the view that the law so required, for Trial Judges to present "a thorough summary of the evidence, and sometime in exhaustive and unnecessary detail.” The commentator observed that the statutory language quoted above reflected a judgment that this "frequently served no useful purpose or worse, provided an inaccurate slant”. (Ibid.)
Undeniably, the statutory language does not preclude a [452]*452Judge from entering into a more detailed review and analysis of the evidence than the statute requires. Where such an analysis is undertaken, as undeniably it was in this case, it manifestly becomes important for the Judge to exercise scrupulous care that the review of the evidence, and accompanying comments, are balanced and evenhanded, and that they do not inappropriately influence the jury in the discharge of its obligation to determine the factual issues. (See, People v Williamson, 40 NY2d 1073, 1074.) Where the facts seem strongly to preponderate in favor of the prosecution, as may reasonably be thought to have been the situation in this case with respect to the identification testimony, the problem of balance presented for a Judge who undertakes such a detailed analysis of the evidence obviously becomes more difficult.
Preliminarily, it should be said that the court’s charge fairly summarized the relevant evidence, set forth comprehensively and accurately general, long-approved guidelines for evaluating the credibility of witnesses, and, with the single but important exception of the discussion of intent to kill, explained fairly and accurately the application of the law to the facts. In addition, however, and giving rise to the issue on this appeal, the court undertook a detailed exposition of the questions raised by the relevant testimony that the jury might appropriately consider in evaluating the reliability of that which they heard.
Viewed in a context other than that of a court charging a jury, almost all of that which was said with regard to the reliability of the identifications could be evaluated as an exceptionally able, searching and thoughtful review of the considerations that might reasonably be thought to bear on that issue. It is difficult to think of any factor reasonably relevant to the reliability of the identifications, whether favorable to the prosecutor or to the defendant, that was not set forth clearly by the trial court.
On the other hand, when this extended portion of the charge is examined carefully, and considered as a whole, the conclusion seems to us inescapable that the factors favorable to the prosecutor’s theory were consistently presented with more emphasis, cogency and detail than those that might reasonably have been thought helpful to the defendant. We assume that this characteristic of the court’s analysis of the factors bearing on identification represented the reasonable judgment of an experienced and able trial court as to the probative value to be attached to the various considerations that he discussed. But as we understand the distinction be[453]*453tween the judicial function and the jury function, it is not acceptable in our jurisprudence for the trial court’s personal evaluation of the evidence to be presented to the jury in a manner that could influence the jury’s discharge of its fact-finding function. What occurred here presented, at a minimum, such a possibility.
Given the undoubted strength of the People’s case with regard to the defendant’s identification, it is at least arguable that the jury’s acceptance of the reliability of the identification testimony may not have been influenced by the court’s detailed factual analysis, notwithstanding the concerns we have expressed. A more substantial potential for prejudice seems to us presented by the court’s charge with regard to the People’s obligation to prove that the defendant intended to kill the deceased.
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Judgment, Supreme Court, New York County (Edward J. Greenfield, J.), rendered February 14, 1985, convicting defendant after a jury trial of murder in the second degree and sentencing him to an indeterminate term of 15 years to life imprisonment, reversed, on the law and as a matter of discretion in the interest of justice, the conviction is vacated, and the case is remanded for a new trial.
The defendant was convicted after a jury trial of murder in the second degree and sentenced to an indeterminate prison term of 15 years to life.
Of the several issues raised on this appeal by the defendant, the most important one in our view is presented by defendant’s claim that the trial court’s detailed review and analysis of the evidence in the charge exceeded the limits implicit in the governing statute, and that parts of the court’s factual analysis could have improperly influenced the jury’s consideration of the facts. A second issue meriting discussion is presented by defendant’s claim that it was error to admit evidence that the police were assisted in locating and identifying the defendant by information received from an unidentified person on the basis of a description of the then unknown assailant in a television program.
On August 22, 1983, at about 6:30 p.m., in the neighborhood of Lexington Avenue and 99th Street, the deceased, Charles Jones, died shortly after he was stabbed by someone with whom he had been engaged in a heated argument extending over a period of time, involving the exchange of abusive remarks, shoving, and perhaps punches. The relevant events [451]*451were observed by three witnesses who testified at the trial, all of whom knew the deceased. There was evidence that just prior to the stabbing, the assailant, exhibiting a knife, said he would stab the deceased, and the deceased responded in substance that his adversary did not have "the heart” to do it.
One witness, Jane Boyd, observed the event from her 12th floor window. Two others, Emilio and Kathleen Cotto, brother and sister, 14 and 15 years old, respectively, at the time, observed the incident from different vantage points on the street.
On April 19, 1984, the defendant was identified in lineups by Emilio and Kathleen Cotto. Emilio Cotto, who testified that he had previously seen in the neighborhood the person who had stabbed Jones, stated at the time of the lineup that he was 80% certain of the identification. His sister Kathleen stated that she was absolutely certain.
The reliability of the identifications was significantly enhanced by the fact that the stabber had been observed to have an extended distinctive scar on his cheek, that the defendant had such a scar, and that he was identified by the two witnesses notwithstanding the fact that strips of tape had been applied to his cheek covering the scar as well as to the same part of the cheeks of the other lineup participants.
Turning to the defendant’s claim that he was unfairly prejudiced by the detailed analysis of the evidence in the court’s charge, discussion of the issue appropriately starts with consideration of CPL 300.10 (2). In relevant part, the subdivision provides with regard to the charge that the court must state "the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts, but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation.”
The background to this statutory language was succinctly explained in Bellacosa, Practice Commentary (McKinney’s Cons Laws of NY, Book 11A, CPL 300.10, at 532), where it was pointed out that it had become the practice previously, on the view that the law so required, for Trial Judges to present "a thorough summary of the evidence, and sometime in exhaustive and unnecessary detail.” The commentator observed that the statutory language quoted above reflected a judgment that this "frequently served no useful purpose or worse, provided an inaccurate slant”. (Ibid.)
Undeniably, the statutory language does not preclude a [452]*452Judge from entering into a more detailed review and analysis of the evidence than the statute requires. Where such an analysis is undertaken, as undeniably it was in this case, it manifestly becomes important for the Judge to exercise scrupulous care that the review of the evidence, and accompanying comments, are balanced and evenhanded, and that they do not inappropriately influence the jury in the discharge of its obligation to determine the factual issues. (See, People v Williamson, 40 NY2d 1073, 1074.) Where the facts seem strongly to preponderate in favor of the prosecution, as may reasonably be thought to have been the situation in this case with respect to the identification testimony, the problem of balance presented for a Judge who undertakes such a detailed analysis of the evidence obviously becomes more difficult.
Preliminarily, it should be said that the court’s charge fairly summarized the relevant evidence, set forth comprehensively and accurately general, long-approved guidelines for evaluating the credibility of witnesses, and, with the single but important exception of the discussion of intent to kill, explained fairly and accurately the application of the law to the facts. In addition, however, and giving rise to the issue on this appeal, the court undertook a detailed exposition of the questions raised by the relevant testimony that the jury might appropriately consider in evaluating the reliability of that which they heard.
Viewed in a context other than that of a court charging a jury, almost all of that which was said with regard to the reliability of the identifications could be evaluated as an exceptionally able, searching and thoughtful review of the considerations that might reasonably be thought to bear on that issue. It is difficult to think of any factor reasonably relevant to the reliability of the identifications, whether favorable to the prosecutor or to the defendant, that was not set forth clearly by the trial court.
On the other hand, when this extended portion of the charge is examined carefully, and considered as a whole, the conclusion seems to us inescapable that the factors favorable to the prosecutor’s theory were consistently presented with more emphasis, cogency and detail than those that might reasonably have been thought helpful to the defendant. We assume that this characteristic of the court’s analysis of the factors bearing on identification represented the reasonable judgment of an experienced and able trial court as to the probative value to be attached to the various considerations that he discussed. But as we understand the distinction be[453]*453tween the judicial function and the jury function, it is not acceptable in our jurisprudence for the trial court’s personal evaluation of the evidence to be presented to the jury in a manner that could influence the jury’s discharge of its fact-finding function. What occurred here presented, at a minimum, such a possibility.
Given the undoubted strength of the People’s case with regard to the defendant’s identification, it is at least arguable that the jury’s acceptance of the reliability of the identification testimony may not have been influenced by the court’s detailed factual analysis, notwithstanding the concerns we have expressed. A more substantial potential for prejudice seems to us presented by the court’s charge with regard to the People’s obligation to prove that the defendant intended to kill the deceased. This aspect of the charge seems to us clearly flawed, and flawed on an issue as to which the evidence presented a close question. This is a case in which the deceased died as a result of a single stab wound, after a heated argument in which just prior to the knife thrust, the assailant said that he ought to stab the deceased, and the deceased taunted him by saying that he did not have the heart to do it. Manifestly, these well-established circumstances made the issue of intent to kill a close one.
For reasons that are not explained in the record, neither the Trial Assistant nor defense lawyer requested the Judge to submit manslaughter in the first degree as a lesser included charge, and the trial court, apparently choosing not to override the preference of the two lawyers, did not exercise his discretion to submit that charge. As a result of the omission to submit manslaughter in the first degree, an unsatisfactory situation was presented in which a juror, convinced that the defendant was the stabber but not persuaded that he intended to kill, would have been under the painful duty of voting to acquit someone whom the juror believed had unjustifiably caused the death of the deceased.
The court’s charge on the issue of intent to kill seems to us to have been seriously misleading, perhaps, in part at least, because manslaughter in the first degree had not been requested by the defense counsel and defense counsel did not argue the issue of intent to kill in his summation.
The trial court correctly informed the jury that it was the prosecutor’s burden to prove intent to kill beyond a reasonable doubt, and made appropriate general comments on that issue. When this part of the charge is examined as a whole, however, it seems to us clearly to communicate the message [454]*454that a finding by the jury that the stabbing was intentional would almost necessarily require the further finding that the defendant intended to kill the deceased. This over-all impression was communicated by several aspects of the charge.
First, the trial court inexplicably focused on whether or not the stabbing of the deceased was intentional or accidental, giving several examples of circumstances under which such an event might be considered accidental. But the emphasis on whether the stabbing was intentional or accidental, addressing an issue that could not reasonably be thought to have been presented by the evidence, necessarily obscured the more critical question as to whether the stabber intended to kill the deceased. The absence of any explicit discussion of that issue, particularly when compared with the stress on whether the stabbing was accidental or intentional, had a clear capacity to minimize the significance of the more fundamental question.
The same misleading impression was implicit in the court’s illustration of a person killed by a gunshot to the head as presenting a situation in which intent to kill might reasonably be inferred, surely an inappropriate illustration in a case in which the deceased died from a stab wound to the chest that penetrated his lung and heart. Similarly questionable was the trial court’s comment that a statement by a defendant that he was going to kill the deceased would be supportive of a finding that such was his intent, which was followed by a reference to the defendant’s alleged statement in this case about stabbing the deceased, in a context that could have implied to the jury that the defendant’s statement would support a similar inference.
The misleading impression that seems to us to have been implicit in the court’s charge with regard to intent was accentuated when the court followed this part of the charge with the observation that the principal issue presented at the trial was one of identification. Although this comment was understandable in light of the summations given by the two lawyers, it inevitably depreciated the significance of the issue presented by the evidence bearing on intent to kill, which on any realistic evaluation of the evidence presented a close factual question.
Although defense counsel’s objections to the marshaling of the evidence did not specify this aspect of the charge, and accordingly it may not have been preserved as a matter of law, we think that the court’s discussion of the issue had a substantial capacity to mislead the jury in its consideration of [455]*455the evidence relevant to a necessary element of the crime charged, and one that by any objective standard presented a close factual question.
We also believe that it was error to admit evidence that the arresting detective was assisted in locating and identifying the defendant by information provided by an unidentified person who heard a television broadcast concerning the event in which a description of the then-unknown assailant was given. This evidence constituted inadmissible hearsay. The hearsay character of this evidence would of course have been apparent if the officer described the details of the information given by that person which led him to the defendant. The fact that the testimony took the form of a conclusory statement that an unidentified person had given him information leading him to the defendant, and did not include the specifics, in no way negates its hearsay character. (Cf., People v Holt, 67 NY2d 819, 821.)
Nor do we think the error would have been an innocuous one even if we accept the District Attorney’s argument on the appeal that the very most that was conveyed to the jury was that someone saw the program and reported that the defendant resembled the description. The ability of someone who knew defendant to recognize that he may have been the person described in a television program on the basis of information provided by witnesses to the original event could surely have been considered by jurors as providing some, perhaps substantial, confirmation of the identification testimony.
In view of our conclusion that the conviction must be reversed for reasons set forth above, we think it unnecessary to determine whether the erroneous introduction of this evidence, which was not timely objected to, would have independently required reversal of the conviction. Concur—Sandler, Milonas and Rosenberger, JJ.