People v. Fusaro

77 A.D.2d 627, 430 N.Y.S.2d 125, 1980 N.Y. App. Div. LEXIS 12351

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 1980
• Status: Published

Opinion

Appeals by defendants from two judgments (one as to each of them) of the Supreme Court, Kings County, both rendered December 17, 1976, convicting each of them of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the third and fifth degrees and also convicting defendant Fusaro of two counts of criminal sale of a controlled substance in the sixth degree, upon jury verdicts, and imposing sentences. Judgments reversed, as a matter of discretion in the interest of justice, and new trial ordered. Defendants were tried together. A joint defense of entrapment was asserted. In the course of the trial court’s charge to the jury, the jurors were instructed to first consider whether the defendants had proven their defense by a preponderance of the evidence, and if they had, to acquit them; if the jurors did not believe the defense, they were instructed to then consider whether the People had proven defendants’ guilt beyond a reasonable doubt. This charge was erroneous and served to deprive defendants of a fair trial in that it acted to dilute the People’s burden of proof (see People v Morris, 68 AD2d 893; People v Johnston, 47 AD2d 897). Accordingly, in view of the nature of the error, we reverse and order a new trial, notwithstanding defendants’ failure to make timely trial objection thereto. Other claims asserted by both defendants on appeal have been considered and found to be without merit. Titone, J. P., Mangano, Rabin and Martuscello, JJ., concur.