We are constrained to vote for reversal of the conviction and to grant a new trial because in several respects the elements of a fair trial were absent. From the very beginning of the trial, indeed as prospective jurors were being examined, the District Attorney inquired as to whether any of them had any interest in or were active in an organization named “ Congress of Racial Equality ” which is commonly known as “ CORE ”. There was no basis whatsoever for this inquiry and reference to this completely unrelated subject could, under the circumstances of the trial of this Negro, only serve to prejudice and confuse the jury. “ The effect of his injection of race and color into the case was unwarranted and improper.” (People v. Burney, 20 A D 2d 617.) During the course of the trial the four alleged accomplices of the defendant, whose trials had been severed and were to be tried separately, were dramatically brought into court in the presence of the jury and required to execute waivers of immunity while on the witness stand. Thereafter each of them testified for the People. Aside from the inculpating testimony of these four accomplices there was only one witness, Chillemi, who made positive identification of the defendant from seeing his facial characteristics. The victim was unable to identify him at all. The difficulty which the jury had in resolving the question of identity was obvious from the questions they asked and the testimony which they requested to be read to them on two occasions after they had retired to deliberate. This fact, coupled with the testimony of the three alibi witnesses produced by defendant, and the failure to find any of the fruits of the crime on defendant’s person, although he was accused of taking $236 in currency and was apprehended 20 minutes after commission of the crime, do not present the quality of proof required to establish guilt beyond a reasonable doubt.
At 12:35 in the morning, more than seven hours after they had commenced their deliberations, the jury sent a communication to the court which stated: “ At this point of deliberation, after several ballots and an individual polling of members of the Jury we have reached a deadlock position.” Defense counsel *156moved for a mistrial, which was denied. The court requested the jury to continue their deliberations ‘ because of the length of time it has taken to try this case and of course, we are all exhausted, we of course would like to have you arrive at a verdict ”. We make no suggestion that the remarks of the court were in and of themselves coercive. We do say, however, that setting the tone of possible prejudice at the outset when viewed with the struggle as to identification does not make for a fair and impartial determination in the early hours of the morning by an “ exhausted” jury. After seven days of trial and many hours of deliberation the very least which should have been done at 12:35 a.m. when the jury announced its deadlock was to have permitted them to go to bed and resume their deliberations after securing some much needed rest. It was not until 3:47 a.m. that this jury, which had returned to the courtroom four times for assistance, found defendant guilty of two of the three counts of the indictment.
In our judgment the defendant was not accorded “ a scrupulously fair and impartial trial where nothing should be done to prejudice his case or to obscure in the minds of the jurors the elemental question”. (People v. Becker, 210 N. Y. 274, 289.) The record of this trial amply demonstrates that “ the balanced judgment and fairness which our system of jurisprudence so properly demands ” were destroyed by the combination of prejudicial events which occurred. (People v. Dovico, 6 A D 2d 457, 458 and cases cited therein.)
Williams, P. J., and Henry, J., concur with Del Vecchio, J.; Goldman and Noonan, JJ., dissent in opinion.
Judgment affirmed.