(dissenting). We would reverse. In our view, the circumstantial evidence of defendant’s guilt is not overwhelming and the admission of defendant’s statement to a police officer that he did a "terrible thing” was both erroneous and not harmless.
No one contests the suppression court’s finding that the defendant was in custody when he made the statement at issue. We agree, given the circumstances and atmosphere presented, a reasonable man, innocent of any crime, would have believed he was in custody (see, People v Yukl, 25 NY2d 585, 589, cert denied 400 US 851; People v Parks, 120 AD2d 920). It is further conceded that no Miranda warnings were administered by the police investigators who had traveled from New York State to New Jersey to pick up defendant and who would have placed him under arrest if he refused voluntarily to accompany them. We disagree, however, with the majority’s finding that defendant’s statements were made in the absence of police questioning or its functional equivalent.
The admissibility of such statements made in the police car, prior to any Miranda warnings, turns on whether they were "the product of 'express questioning or its functional equivalent’ ” (People v Bryant, 59 NY2d 786, 788, quoting Rhode Is. v Innis, 446 US 291, 300-301; see also, People v Ferro, 63 NY2d 316, 322-323; People v Huffman, 61 NY2d 795, *233797). Because "[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police” (Rhode Is. v Innis, supra, p 301), the question is not what was the subjective intent of the police but rather what words or actions, in light of their knowledge concerning the suspect, they " 'should have known were reasonably likely to elicit an incriminating response’ ” (People v Ferro, supra, pp 322-323, quoting Rhode Is. v Innis, supra, p 302 [italics in original]).
The police investigator who was from the Town of Brighton where the homicide occurred and who was without question investigating defendant’s wife’s murder admitted that during the course of the automobile ride he asked defendant several questions, including one inquiry about defendant’s "family”. Almost immediately following this inquiry, defendant responded "You help me. I do terrible thing.” In our view, the police officer’s questions amounted to more than just casual conversation or "small talk” as characterized by the majority and constituted "express questioning or its functional equivalent” (Rhode Is. v Innis, supra, pp 300-301). In light of the police knowledge of defendant, including his distraught emotional state and their suspicions of his involvement in his wife’s death, we conclude that they should have known their questions were "reasonably likely to elicit an incriminating response from the suspect” (see, Rhode Is. v Innis, supra, p 301; People v Ferro, supra, pp 322-323). Therefore, in our view, the statements made by defendant in response to the officer’s questions without benefit of Miranda warnings should have been suppressed (People v Ferro, supra; People v Parks, supra).
The introduction of this statement at trial was prejudicial to the defendant. This error cannot be viewed as "harmless” as the proof was entirely circumstantial and only inferentially identified the defendant as the perpetrator of these acts. It was the defendant who identified himself as the one who stabbed and suffocated his wife. Defendant’s statement that he did a "terrible thing” could well have been interpreted by the jury as a clear admission of guilt supporting the defendant’s testimony that he stabbed and suffocated his wife while at the same time, undermining his claimed defenses. Since this constitutional error might have contributed to the defendant’s conviction (People v Crimmins, 36 NY2d 230, 237), a new trial is required.
We also find merit to defendant’s claim that the court’s charge to the jury was erroneous and misleading in a number *234of significant respects. The majority opinion discusses only one aspect of the court’s charge with respect to circumstantial evidence. On appeal, defendant claims that the court’s charge on circumstantial evidence was deficient as a matter of law for several reasons. The court instructed the jury that "If the conviction rests alone on circumstantial evidence, then the direct evidence must exclude to a moral certainty every supposition except that of the guilt of the accused” (emphasis added). In our view, this instruction attempting to convey the exclusion concept was both confusing and inadequate (see, People v Ford, 66 NY2d 428, 433). It would have been more accurate had the court’s instruction on circumstantial evidence stated that the hypothesis 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 (see, People v Ford, supra, pp 441, 443; People v Sanchez, 61 NY2d 1022, 1024; see also, 1 CJI [NY] 9.05 p 475). Furthermore, the court should have charged, as requested by the defendant, that the People must prove each circumstantial fact upon which they rely by direct evidence beyond a reasonable doubt. Since the proof of defendant’s guilt was largely circumstantial, defendant was entitled to a proper instruction on circumstantial evidence.
"It is the duty of a trial judge to instruct the jury to the effect that in its deliberations upon the question of the defendant’s guilt or innocence it may consider the question of the defendant’s motive or lack of motive to commit the crime charged.” (People v Sangamino, 258 NY 85, 88; emphasis added; see also, People v Seppi, 221 NY 62.) Here, the court instructed the jury that "If you find certain evidence concerning a motive, then you may take that evidence into consideration in determining the issues in this case.” However, the court refused defendant’s request that they should consider the "lack of evidence of a motive as a factor in reaching its verdict”. This was a proper request (see, 1 CJI [NY] 12.15 p 703) and should have been charged. While it is true that motive is not an essential element of the crime which need be proved by the People, the question of motive or lack of motive is always a question for the serious consideration of a jury in determining defendant’s guilt or innocence (People v Sangamino, supra).
We also note the court’s reference in its charge to "evenly balanced scales” when discussing the burden of proof. Such language is improper in a criminal trial as it creates the *235impression that the burden of proof is something less than guilt beyond a reasonable doubt (see, People v Wade, 99 AD2d 474; People v Ortiz, 92 AD2d 595; People v Melville, 90 AD2d 488, 489; People v McCray, 57 AD2d 632). Such an instruction is misleading and should have been avoided (People v Navarro, 104 AD2d 958, 959).
For reasons stated herein, the conviction should be reversed and a new trial granted.
Dillon, P. J., and Lawton, J., concur with Boomer, J.; Callahan and Balio, JJ., dissent and vote to reverse the conviction and grant a new trial in an opinion by Callahan, J.
Judgment affirmed.