Appellate courts reviewing jury instructions frequently take issue with portions of the charge without doing more than indicating disapproval. After all, we are required to consider errors in the context of the charge as a whole (see Cupp v Naughten, 414 US 141, 146-147 [1973]). Yet, there comes a time when repeated appellate admonitions have proven futile in preventing charge errors which have the effect of causing jury confusion. Since I believe such charge errors happened in this case, I conclude that a new trial is necessary here.
Trial judges must always be mindful that a jury is not left with a fundamental misapprehension of how to go about deciding a case. In a criminal case, nothing is more fundamental than the requirement that a defendant may only be convicted if each and every element of the crime is proved beyond a reasonable doubt. When there is a distinct possibility of confusion in this area, admonitions are not enough.
The portion of the jury instruction which is at issue here concerns the People’s burden of proof. After instructing the jury on what constitutes evidence, the court went on as follows:
“[E]very defendant is entitled to every factual inference in his favor which can reasonably be drawn from the evidence. And where two factual inferences can be drawn from the evidence, both being of equal weight and strength, one factual inference consistent with guilt and the other factual inference consistent with innocence, any defendant is entitled to the factual inference of innocence.
“With regard to facts and with regard to the verdict, there are two different burdens of proof operating simultaneously . ..
“With regard to finding of fact during the course of your deliberations, the burden of proof is simply that it is more likely than not that the fact exists, 50.1 beating 49.9.”
Later in the charge, the trial court fully instructed the jury concerning the presumption of innocence and the People’s burden of proving the elements of the charged crimes beyond a reasonable doubt.
At the conclusion of the court’s charge, defense counsel stated *229while he understood that the “50.1 and 49.9” language applied to the evidence charge as opposed to the reasonable doubt charge, the jury might be confused. Counsel asked the court to reread the standard reasonable doubt charge on “to convict or not convict.” The court denied counsel’s request.
As my colleagues note, there is a fundamental problem with the portion of the above charge known as the “two inference” charge, in which the court instructed the jury that where two factual inferences can be drawn from the evidence, one consistent with guilt and the other consistent with innocence, the defendant is entitled to the factual inference of innocence. The problem with this charge as it was given in this case is that it fails to note that if the inference consistent with guilt is stronger than that consistent with innocence, yet not strong enough to prove the defendant’s guilt beyond a reasonable doubt, acquittal is required. “This instruction erroneously allow[s] the jury to use the preponderance of the evidence standard in a criminal case” (United States v Hughes, 389 F2d 535, 537 [1968]; see also United States v Khan, 821 F2d 90, 93 [1987]; but see People v Tubens, 237 AD2d 170 [1997], lv denied 90 NY2d 898 [1997]). Its use, adding nothing and creating only the potential for misunderstanding, should be prohibited outright.
An equally disturbing related problem was created by the portion of the charge instructing that “[w]ith regard to finding of fact during the course of your deliberations, the burden of proof is simply that it is more likely than not that the fact exists, 50.1 beating 49.9.” As defense counsel protested, this instruction is too confusing, and can only lead to the possibility of the jury finding elements of the crime based upon a preponderance of the evidence standard.
A degree of support for this portion of the charge is concededly found in United States v Viafara-Rodriguez (729 F2d 912 [1984]), which stated that the burden of proof beyond a reasonable doubt “does not operate upon each of the many subsidiary facts on which the prosecution may collectively rely to persuade the jury that a particular element has been established beyond a reasonable doubt” (id. at 913, citing United States v Valenti, 134 F2d 362, 364 [1943], cert denied 319 US 761 [1943]). But, despite the technical accuracy of this assertion, it serves no useful function within a jury charge, and indeed, can only serve to confuse the jury as to the degree of proof required for the different findings of fact that together lead to the verdict. As the Second Circuit remarked in Viafara-Rodriguez in elaborating on the complex range of ways in which burdens of proof operate in criminal cases, “[t]he range of such matters suggests the haz*230ard of attempting to tell the jury anything more than it needs to know in a particular case. That the burden [of proof beyond a reasonable doubt] applies to the defendant’s guilt and to every element necessary to establish guilt will normally be sufficient” (729 F2d at 913).
There may be particular circumstances in which it is necessary to explain to the jury that certain types of “subsidiary” facts need only be decided by a preponderance of the evidence: for instance, if the jury was to ask whether an ancillary witness’s credibility must be established beyond a reasonable doubt before his testimony is relied upon (cf. Justice v Hoke, 45 F3d 33, 35 [1995]). However, in the absence of a particular question, or some other unique circumstance making such an instruction important, giving this “subsidiary facts” charge in the context of the general closing charge to the jury is a pernicious practice, having no positive impact and being very likely to serve only to confuse the jury.
Moreover, even if we were to approve inclusion in a jury charge of a lesser burden of proof regarding “subsidiary facts,” the language employed by the trial court here did not suffice to correctly convey the proper standard. Instead, the court, without explaining the distinction between “facts” and the “verdict,” or even using the term “subsidiary facts,” simply instructed that “[w]ith regard to facts and with regard to the verdict, there are two different burdens of proof operating simultaneously.” This cannot be permitted to stand. We cannot allow a jury charge to refer to the use of the preponderance standard without an explanation of which types of facts may be proven by a preponderance of the evidence, and which, such as the actual commission of the act constituting the crime, must be proved beyond a reasonable doubt.
For all the foregoing reasons, I conclude that defendant’s conviction must be reversed and the matter remanded for a new trial.