People v. Sanchez

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered July 9, 1980, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was convicted of killing, by strangulation, the grandmother of a former girlfriend. A statement, made by defendant to an Assistant District Attorney, was introduced into evidence against him at his trial. In that statement he admitted having been at the decedent’s apartment on the night in question and having struck her after she allegedly called him offensive names. Defendant took the position that the case against him was based entirely upon circumstantial evidence, and that he was, therefore, entitled to have the trial court charge the jury that proof of guilt “should flow naturally from the facts proved, and be consistent with them; and [that] the facts proved must exclude ‘to a moral certainty’ every reasonable hypothesis of innocence” (People v Benzinger, 36 NY2d 29, 32; People v Morris, 36 NY2d 877, 878-879). The trial court refused defendant’s request for this instruction, on the ground that defendant’s statement constituted some direct evidence of guilt, and, therefore, as the case *596against him was not wholly circumstantial, the moral certainty instruction was not required. Thereafter, the court charged the jury that “[t]he defendant is entitled to every inference in his favor which can reasonably be drawn from the evidence. And where two inferences may be drawn from the evidence, one consistent with guilt and one consistent with innocence, the defendant is entitled to the inference of innocence.” The court did not, however, charge the jury that defendant’s statement constituted direct evidence of his guilt. Instead, the jury was instructed, generally, that a confession by a defendant is a direct acknowledgement of guilt, but that an admission is a statement from which guilt can only be inferred, and is therefore circumstantial evidence. It was then left to the jury to determine into which of these two categories defendant’s statement belonged. Following the charge, defendant again requested that the jury be given the moral certainty instruction, because of the possibility that the jury would define the statement as an admission, making the case against him wholly circumstantial, but this request was denied. That denial was error. Generally, the trial court should determine if a defendant’s statement is either a confession or an admission, but where, as here, that question is left to the jury, the trial court is obligated to instruct the jurors on the proper standards to be applied as a consequence of their determination that the statement is of one or the other type. Although the court need not specifically state that proof should exclude to a moral certainty every hypothesis of innocence, the charge must still adequately inform the jury of the burden of proof in a wholly circumstantial case CPeople v Morris, 36 NY2d 877, supra; People v Gonzalez, 54 NY2d 729). In this case, nothing in the court’s charge alerted the jurors to the fact that they would be required to assess the evidence differently if they found that defendant’s statement was an admission, and that the case against him was therefore wholly circumstantial, than if they found that his statement was a confession, and therefore direct evidence of his guilt. Additionally, the many objectionable statements made by the prosecutor during summation must be noted, among them the frequent and prolonged descriptions of the brutality of the murder, gratuitous references to the Buddy Jacobson case, and a suggestion that the jury might find an acquittal difficult to explain to the community. However, because of defendant’s failure to object to many of these statements, and the trial court’s prompt attempts to cure their prejudicial effect, reversal could not be had on that ground. Titone, J. P., Bracken and Brown, JJ., concur.