People v. Johnson

Tom, J.P. (concurring).

The court instructed the jury that if two factual inferences may be drawn, each equally consistent with guilt or nonguilt, the defendant is entitled to a factual inference of innocence. Taken with the court’s extensive instructions in regard to the People’s burden for conviction and the requirement of proof beyond a reasonable doubt, the court’s charge, on the whole, arguably served to apprise the jury of the appropriate standard for conviction (see People v Fields, 87 NY2d 821, 823 [1995]; People v Maldonado, 220 AD2d 212, 213 [1995], lv denied 87 NY2d 904 [1995]). However, the additional instruction that the jurors should resolve factual inferences by a bare preponderance of the evidence (“50.1 to 49.9”) was an unnecessary departure from the Criminal Jury Instructions that introduced the potential for confusion, thereby tending to dilute the prosecution’s burden on the ultimate question of guilt.

Accordingly, the judgment of conviction should be vacated and the matter remanded to Supreme Court for a new trial.