The majority opinion fairly states the facts. However, I disagree with the conclusion reached by the majority that the Trial Justice’s supplemental instructions were not overly coercive and otherwise prejudicial. Despite the absence of objection, I find the tenor of the instructions in response to questions posed by the jury to be so suggestive, coercive and prejudicial as to deprive defendant of his right to a fair trial. The conclusion of the majority and the trial court that this was a simple case was apparently not shared by the jury. Clearly, this jury was having trouble in its deliberations. Under such circumstances, I find error in the Trial Justice’s belittling the case by reminding the jury that this was not "a difficult case” and by suggesting that, considering the fact that four counts were submitted, it seemed to the court that "somebody is not considering the facts”. Nor was it at all proper for the Trial Justice to align himself with the prosecution by suggesting that "We” had presented proof, referring to the two accomplices who appeared on behalf of the People.
After having been sequestered for the night, the jury at 11 a.m. the following morning reported through the foreman that they reached an impasse on all four counts. The court then instructed them as follows:
"the court: You may be seated. As I indicated before when I charged you, no one is to go in there with a closed mind. You should exchange ideas and views and there is no one who *642knows at all what we did. We presented you the evidence> I gave you the rules of law and you said that you would not come in with any preconceived notions. This is not a difficult case. We presented two witnesses who said they were there, they were accomplices. They told their story. You can either believe them or not. If you believe them, if you believe their story that the defendant was there and then you have to find independent evidence which tends to connect him with the incidents. All that the People have to prove is that there was a dead body and that the defendant participated in this alleged occurrence. It has been conceded that there was a dead body. The defendant says he was there, he knew the parties, but did not participate. I don’t care how you decide, but on four counts it just seems to me that somebody is not considering the facts or if they need any further explanation I will give it to them at any time or have testimony read to you. Your term ends at the end of the day and the Court of Appeals has said that seven hours is not a reasonable time for deliberations in a case, in any kind of criminal case and therefore I cannot discharge you. I’m not, as I indicated before, I’m not saying that a person who really feels and has a conscious conviction one way should surrender his or her conviction. As I said before I wanted to include the ladies in this also. I’m not talking to the men only, but all we are asking is that you use the same common sense that you use in your living room. I’m certain if you were alone at home it wouldn’t be a problem, you would decide it in 5 minutes or in the barbershop as you usually hear the people talking about what happens. You have a chance to assist us in the administration of our criminal justice system and we are asking you to, if you have closed minds, to open them and you can either acquit or convict. It makes no difference to me, but with certainly four counts there should be some acquiescence or agreement on some of the counts. If you need an explanation, I will give it to you. You are not going to be discharged this time. If you need further explanation of the law or any of the points involved you can get it from me. As I indicated, you should not have vengeance or sympathy enter into your deliberations. If you have any questions you may ask them. You might wonder why we have the paper. Discussions of questions are to be carried on in the jury room and not in the courtroom.” (Emphasis supplied.)
This portion of the supplemental charge tended to pressure *643the jury to resolve the issue in the same manner as a barbershop dispute is resolved, rather than with the calm deliberation appropriate for jury deliberations. Moreover, it improperly suggested that the testimony of the two accomplices was entitled to greater credibility than that of the defendant "if you believe their story that the defendant was there”. It was undisputed that defendant was there. The issue was whether he participated in the crimes resulting in the victim’s death. The court’s prejudicial suggestions as to the greater credibility of the accomplices’ testimony were further made clear in response to a later question respecting credibility:
"Now with reference to the last answer, the last answer to the question, there was reference to believing some of the witnesses. You have witnesses, two witnesses who pled guilty. That is a matter of record. There is no doubt that they were there, you know, that part you have to believe. You understand what I am saying about that?” (Emphasis supplied.)
The implication is clear.
The tenor of the supplemental instructions evinces understandable frustration on the part of the trial court in reacting to a jury which was having some difficulty in its deliberations. However, it was improper for the trial court to have denigrated the jury’s function, in effect instructing them that members of the panel were not considering the facts and in suggesting to them that there be "acquiescence or agreement” on at least some of the four counts which had been submitted. In the context of the difficulty which the jury was obviously having in resolving the issues, I find the court’s instructions coercive and sufficiently prejudicial as to warrant reversal and remand for a new trial. (Cf. People v Hill, 44 AD2d 813; People v Riley, 20 AD2d 599; People v Josey, 19 AD2d 660.)
Nor may the errors be disregarded, as does the majority in concluding that the proof of guilt was overwhelming. In reaching that conclusion, the majority accepts without question the prosecution proof adduced through the two accomplices who had pleaded guilty and testified that defendant was in fact a participant in the crime. Obviously, the jury when it initially considered the case, gave some credence to defendant’s account that he played no role in the commission of the crime. This is evidenced by the extent to which the deliberations proceeded, the jury apparently deadlocked until the Trial Justice inadvisably instructed them that "on four counts it just seems to me that somebody is not considering the facts” *644and that "with certainly four counts there should be some acquiescence or agreement on some of the counts.”
Although undoubtedly inadvertent, the court’s use of the term "We” in referring to the proof presented by the prosecution tended to align the court with the prosecutor, as an advocate, rather than an impartial arbiter. It may have conveyed to the jury the impression that the court had preconceived ideas as to the merits of the case, thereby denying defendant his right to a fair and impartial trial.
People v Pagan (45 NY2d 725) is not dispositive as the majority suggests. So far as appears, the Court of Appeals concerned itself with a supplemental charge far different from that in this case. Unlike Pagan, the charge here did not merely call upon the jury to renew deliberations and "make every effort possible to arrive at a verdict.” Nor did the Trial Justice merely remind the jurors of their oaths and to make one final effort to review the evidence and to reach a verdict one way or the other. Rather, the court improperly suggested that the reason the jury could not reach an agreement or acquiescence on some of the four counts was that they were not considering the facts. As the Court of Appeals observed in Pagan (supra, pp 726-727): "To be sure a Trial Judge 'must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict’ (People v Faber, 199 NY 256, 259). Supplemental charges which prod jurors through prejudicial innuendoes or coerce them with untoward pressure to reach an agreement will not be countenanced (e.g., People v Carter, 40 NY2d 933, 934; People v Sheldon, 156 NY 268, 282).”
The court there relied upon established law precluding a Trial Justice from coercing or compelling a jury to reach agreement upon a particular verdict, or any verdict. I see no reason in this case to depart from clear principles designed to ensure the neutrality of the Trial Justice as an impartial arbiter. The observations of Judge Chase in People v Faber (199 NY 256, 259) are applicable with equal force here: "The verdict of a juror should be free and untrammeled. In arriving at a verdict the judge presiding at the court must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict. It was held in substance in People v. Sheldon (156 N.Y. 268) that an attempt to drive the members of a jury into an agreement is beyond the power of the court, and that an obvious effort to effect such result demands a new trial”.
*645Accordingly, the judgment, Supreme Court, New York County (Scott, J.), rendered March 25, 1977, convicting defendant upon a jury verdict of murder in the second degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree, should be reversed and the case remanded for a new trial.
Kupferman and Lupiano, JJ., concur with Silverman, J.; Murphy, P. J., and Fein, J., dissent in an opinion by Fein, J.
Judgment, Supreme Court, New York County, rendered on March 25, 1977, affirmed.