First Department, August 4, 2009

APPEARANCES OF COUNSEL

Richard M. Greenberg, Office of the Appellate Defender, New York City (Joseph M. Nursey of counsel and Valerie A. Koffman, of the Massachusetts bar, admitted pro hac vice, of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Aaron Ginandes and Grace Vee of counsel), for respondent.

Saxe, J.P. [*2]

The trial court in this matter correctly instructed the jury as to its task of deciding whether defendant harbored the requisite intent to be convicted of attempted assault in the first degree. We find that when the charge is considered as a whole, the court's supplemental instruction, responding to the request for clarification of whether intent can be formed on the spur of the moment, would not have led the jury to believe that the court was taking the question out of the jury's hands and simply informing it that such intent had been established. We therefore reject defendant's contention that the trial court committed prejudicial error by improperly directing a finding of intent, and we affirm the conviction.

The four-count indictment charged defendant with attempted murder in the second degree, attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, arising out of an altercation between defendant and another young man in which the complainant was ultimately shot. At trial, during the course of its deliberations, the jury sent the court the following note with regard to the element of intent for the charge of attempted assault in the first degree:

"We need further clarification on Count #2, i.e., Does a spur of the moment action constitute intent? Please define intent. Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the 1st degree?" (Emphasis added.)

Although defense counsel requested that the court simply define intent again and not answer either of the jury's questions except{**66 AD3d at 294} to say "it all depends on the circumstances," the court rejected defense counsel's challenge to its proposed response and determined both to provide an expanded charge on intent and to answer the jury's first question by saying "yes . . . [d]epending on the circumstances," and the second question "no."

The court responded to the jury's note asking "Does a spur of the moment action constitute intent?" with the following supplemental instruction to the jury:

"First off I'm going to give you the longer version of what constitutes intent and that may very well answer these questions.

"[The c]rimes with which the defendant is being charged are crimes which require intent. Intent is defined by the penal law of this state as the situation that exists when a person has a conscious objective to cause the act with which he is charged.

"The burden is on the People to prove the intent of the defendant beyond a reasonable doubt. If you find from the evidence that the defendant did not have a conscious objective to bring about the violation of law you must find the defendant not guilty of this crime. Intent[,] then[,] is a mental operation that can be determined[,] usually[,] only by an examination of all the facts and circumstances surrounding the commission of a crime and the events leading up to, including and following it.

"Now, science has not yet reached the stage where a man's mind can be x-rayed in order to disclose what thoughts are running through his mind. Intent is the secret and silent operation of the mind[,] and its formation can be instantaneous or drawn out . . .

"So, [intent's] only visible physical manifestation is an accomplishment or intended accomplishment of the thing decided upon[,] and since intent is, as pointed out, a mental [*3]operation[,] it is not always easy to establish. It depends upon the peculiar circumstances of the case, upon the man's spoken words, his actions and sometimes upon a combination of both.

"Now, going directly into your question does a spur{**66 AD3d at 295} of the moment action constitute intent, in this context I would say yes[,] [d]epending on the peculiar circumstances of the situation. In this instance my answer is yes.

"Perhaps I can throw in an analog [sic], example removed from this particular pattern. Suppose two guys bump one another on the street, one guy says [']screw you['] to the other guy and this guy pulls out a pistol and shoots him. That intent in that instance was formulated almost instantaneously, spur of the moment. Again[,] that's an example. Here the answer is yes to that question. Could be drawn out, could be instantaneous."

The trial court then turned to the second part of the question, which had merely phrased the same question a different way:

" 'Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the first degree?' The answer to this is no. The defendant could have arrived at the scene to either confront or talk and then formulated the intent to shoot. So, the answer to question one is yes and the answer to question two is no."

Defense counsel took exception, asserting that "answering the question and giving the example . . . was just too close to the factual pattern here."

Initially, we observe that whatever questions are raised as to the phrasing of the court's response to the jury's questions, the court's answer provided the requisite "meaningful response" (see People v Kisoon, 8 NY3d 129, 134 [2007]), which distinguishes this case from the recent Court of Appeals decision in People v Aleman (12 NY3d 806 [2009]), in which a conviction was reversed due to the trial judge's failure to respond to the portion of a jury note stating that the jury was hopelessly deadlocked.

Turning to defendant's claim of prejudicial error, we must keep in mind that in reviewing the adequacy of a trial court's instructions, the challenged portions of the charge should not be examined in a vacuum, but must be assessed in the context of the jury instructions in their entirety. An instruction "may be sufficient, indeed substantially correct, even though it contains phrases which, isolated from their context, seem erroneous. The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which{**66 AD3d at 296} should be applied in arriving at [a] decision" (People v Drake, 7 NY3d 28, 33-34 [2006] [internal quotation marks and citations omitted]; see also People v Fields, 87 NY2d 821, 823 [1995]; People v Coleman, 70 NY2d 817 [1987]).

In many cases, trial courts have misspoken as to an essential focus of the defense, and yet it has repeatedly been found that these charges, viewed in their entirety, conveyed the correct standards to the jury. For instance, in People v Drake, in which the central issue was whether eyewitness identifications of the defendant were accurate, the trial court erroneously charged the jury that it should not use the testimony of the eyewitness reliability expert "to [*4]discredit or accredit the reliability of eyewitness testimony in general, or in this case" (7 NY3d at 32). The error did not require reversal, however, since the remainder of the charge correctly instructed that the expert's testimony was offered to provide the jury with factors that studies had shown to be relevant to assessing a person's ability to perceive and remember (id. at 34).

In People v Fields, the trial judge, having provided instruction regarding the presumption of innocence, the burden of proof and the definition of reasonable doubt, then said, "If the evidence in the case reasonably permits a conclusion of either guilt or innocence, you should adopt a conclusion of innocence" (87 NY2d at 822). The Court of Appeals explained that this instruction was improper because a juror might interpret it to authorize a guilty verdict even if guilt was not established beyond a reasonable doubt, but concluded that the charge as a whole sufficiently conveyed the correct standard (id. at 823). It rejected the dissenter's view that "[s]ince the offending instruction came at the end of the reasonable doubt charge, there is a very real danger that the jurors regarded it as the 'last word' and the most definitive explanation of the concept" (id. at 825).

And, in People v Umali (10 NY3d 417 [2008], cert denied 556 US —, 129 S Ct 1595 [2009]), after the trial court correctly instructed the jury that it was the People's burden to disprove the justification defense beyond a reasonable doubt, it proceeded to explain the objective and subjective standards by which the defense could be disproved. Regarding the subjective test, the court incorrectly instructed:

"If the evidence convinces you beyond a reasonable doubt that deadly physical force was necessary to prevent the imminent use—that the defendant{**66 AD3d at 297} believed that deadly physical force was necessary to prevent the imminent use of deadly physical force you still must find the second test, which is the objective test, were defendant's beliefs reasonable under an objective standard" (10 NY3d at 426).

This portion of the charge, the Court of Appeals observed, was erroneous because it instructed the jury to consider whether it was proved beyond a reasonable doubt that the defendant believed deadly force was necessary, rather than whether it was proved beyond a reasonable doubt that the defendant did not believe deadly force was necessary. This inversion of the inquiry might lead the jury to consider whether the defendant had proved that he had believed deadly physical force to be necessary, instead of whether the People had proved that he did not believe it. However, the Court found that the remainder of the charge properly instructed the jury that it was always the People's burden to disprove justification, and that the charge as a whole could not have misled the jury (id. at 427-428).

In the matter before us, the trial judge fully and properly instructed the jury from the outset in its preliminary instructions, as well as throughout the charge, that the jurors were the sole and exclusive judges of the facts of the case and that the element of intent was one of those facts. Furthermore, the court's charge clearly explained that it was the jury's evaluation of the evidence that controlled, "irrespective of what the attorneys on either side of the case may say regarding the facts and of course regardless of anything I may say to you during the course of this charge regarding the facts." [*5]

We are also cognizant that a reading of the judge's words in the trial transcript may be subtly different from what the jury hears. In a transcript, we are unable to discern such elements as the court's emphasis, and, indeed, even small changes in punctuation may alter the exact sense of the words as they were conveyed to the jury. For instance, in the transcript, the first part of the challenged language is divided into separate sentences: "[I]n this context I would say yes. Depending on the peculiar circumstances of the situation." Reading these words divided into separate sentences in this way could create the impression that the words "I would say yes" were intended as definitive rather than conditional. Had the transcriber used a comma instead of a period before the words "depending on the circumstances," the transcript would have more accurately conveyed the point the court was trying to make to the jury, that, yes, intent may be found to have been formed at the spur{**66 AD3d at 298} of the moment, depending on the circumstances. The court was not flatly saying "Yes" in answer to the jury's inartfully phrased question, "Does a spur of the moment action constitute intent?" It was saying, "yes, depending on the circumstances," thereby leaving it in the jury's hands to consider the circumstances and decide whether the requisite intent had been formed.

Of course, as we examine that portion of the transcript, the court's appropriately conditional response that a spur of the moment action may "constitute intent," "depending on the circumstances," seems to be immediately undercut by the coda, "In this instance my answer is yes." These seven words present the nub of the difficulty, since, to the extent they are viewed in a vacuum, removed from the context of the instructions as a whole, these words seem to convey the sense that the court has made its own definitive determination that "[i]n this instance" the defendant's spur of the moment action did, absolutely, "constitute intent."

But trial judges, like everyone else, may on occasion employ inartful phrasings, "which, isolated from their context, seem erroneous" (People v Drake, 7 NY3d at 33 [internal quotation marks and citation omitted]). It is for this reason that we are required to view the court's instruction to the jury in its entirety.

By the time it employed those seven words, the trial court had given the jury an extended charge regarding the element of intent. It had instructed that intent "is a mental operation that can be determined usually only by an examination of all the facts and circumstances surrounding the commission of a crime and the events leading up to, including and following it," that "its formation can be instantaneous or drawn out," and that "since intent is, as pointed out, a mental operation [,] it is not always easy to establish. It depends upon the peculiar circumstances of the case." By giving these additional instructions as to the considerations relevant to finding intent, before answering the jury's direct question, the court was in effect emphasizing its previous instruction that the question of whether the requisite intent was established remained one for the jury, not the judge, to decide.

The court then moved on to the jury's direct question, "Does a spur of the moment action constitute intent?" (which the court properly treated as if it read "Can a spur of the moment action constitute an intentional act?"), and answered with the previously discussed language that ended with the words "In{**66 AD3d at 299} this instance my answer is yes." Since the jury's clear intent was to ask if a spur of the moment action could be intentional, the answer "Yes" meant not, "Yes, defendant [*6]harbored such an intent," but "Yes, defendant could have formed the necessary intent at the spur of the moment."

Nor did the trial court's subsequent analogy—which defendant also challenges—which was provided to illustrate how intent may be formed "almost instantaneously, spur of the moment," serve to misguide the jury. Indeed, the court's conclusion of that illustration, with the words "[c]ould be drawn out, could be instantaneous," further emphasized that the issues of when, how, and whether defendant formed the necessary intent were for the jury to determine.

It is readily apparent from taking all the court's answers together, and in light of the entire charge, that the court was merely providing further instruction to the jury in how to perform its job of determining whether defendant had formed the requisite intent.

What is more, the court's answer to the second part of the jury's question, "Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the first degree?" further supports the conclusion that the instruction as a whole conveyed that it always remained the jury's task to determine the issue of intent. The court said, "The answer to this is no. The defendant could have arrived at the scene to either confront or talk and then formulated the intent to shoot." This second answer further acknowledged that it was ultimately up to the jury to make findings as to if and when any intent was formed.

Indeed, even the phrasing of the jury's question itself, and the fact that it was asked, makes it plain that the jury already understood that its assigned task included deciding whether defendant had formed the requisite intent and had simply been uncertain about whether he had to have harbored the intent before the act or could have formed the intent "instantaneously." Moreover, by asking this question about intent, the jury in effect indicated that it had already considered and rejected defendant's claim that the complainant's own gun had simply discharged without defendant's either taking hold of it or pulling the trigger; there is no reason to be concerned that the court's charge prevented the jury from adequately considering defendant's version of the events.

After carefully considering whether the jurors might have viewed the court's instructions as simply informing them that{**66 AD3d at 300} defendant had, in fact, acted with the requisite intent, we find "no reasonable possibility that the jury could have misunderstood the court's response as a statement that intent had been established" (People v Watts, 43 AD3d 256, 259 [2007], lv denied 9 NY3d 965 [2007]). The jurors clearly understood the instruction that it was their task to decide whether defendant had committed the crime, including the physical shooting and the mental intent; their understanding is demonstrated by their checking with the court to make sure that intent could be formed at the spur of the moment. We have every reason to conclude that the jurors fully understood and fulfilled their assigned task, and no reason to conclude otherwise. It demeans the obvious abilities of this jury to conclude that it would have relinquished its responsibilities as the finder of facts based on a few words in the middle of a long supplemental charge.

There is no merit to defendant's claim that the hypothetical posited by the court was improper, or prejudiced his case. A trial judge "is not precluded from supplying hypothetical examples in its jury instructions as an aid to understanding the applicable law" (see People v Wise, 204 AD2d 133, 134-135 [1994], lv denied 83 NY2d 973 [1994]). Hypotheticals similar to [*7]the case at hand are proper as long as they are not so "strikingly similar" as to convey the judge's belief in the defendant's guilt and possibly compel the jury to reach a verdict "in harmony" with the judge's conclusion (see People v Hommel, 41 NY2d 427, 430 [1977]). The hypothetical used by the court, about a shooting precipitated by two men bumping into each other, bears little relationship to the fact pattern presented here, in which defendant approached the victim, confronted him about a prior incident, struck him and—as the jury found—shot him. The court's analogy was not so similar to the facts of this case as to convey the court's view of the evidence (compare People v Schenkman, 46 NY2d 232, 238-239 [1978], with People v Hommel, 41 NY2d at 430). In any event, any error in the court's response was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Finally, when considering a court's response to a jury's specific questions, we should recognize the fine line the judge must walk. When a deliberating jury requests additional instructions on an issue, the trial court must "respond meaningfully" (People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). So, while trial judges must be careful when providing supplemental instructions beyond the studied language of the CJI, it is necessary that their answers actually be responsive to{**66 AD3d at 301} the particular question. A simple rereading of the standard CJI instructions, to which cautious judges may prefer to limit themselves, may be insufficient to provide the clarification needed by the jury on a particular issue when the initial standard charge language failed to explain the point clearly enough. We therefore look to trial judges to exercise judgment and discretion in framing meaningful responses to jury questions. But, in exchange for imposing that responsibility, we must, in turn, allow for a degree of imperfection in the framing of such off-the-cuff answers. When a prejudicial impact is claimed, we should carefully examine the entire charge for its impact as a whole before sending the matter back for a new trial. Upon so doing here, we find that the charge, as a whole, conveyed that it was the jury's task to determine whether defendant harbored the requisite intent at the moment of the assault.

Defendant did not preserve his argument that the court gave counsel insufficient notice of its intended response to the jury's note (see e.g. People v Cintron, 273 AD2d 84 [2000], lv denied 95 NY2d 889 [2000]), and likewise failed to preserve his evidentiary claims, and we decline to review these claims in the interest of justice. As an alternative holding, we reject these claims on the merits, except that we find that the People's redirect examination of a detective concerning a conversation he had with the victim was improper but harmless.

Accordingly, the judgment of the Supreme Court, New York County (Edwin Torres, J.), rendered February 27, 2007, convicting defendant, after a jury trial, of attempted assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him to an aggregate term of nine years, should be affirmed.

Moskowitz, J. (dissenting). I would reverse and remand for a new trial because the trial court's response to the jury's note asking whether a spur of the moment action could constitute intent was not balanced. Rather, the court's response, followed by a hypothetical that mirrored the prosecution's version of events, inadvertently answered the jury's ultimate question. Therefore, I dissent.

Defendant and Mark J., both teenagers in September 2004, had known each other for about 10 years during what they agree was a rocky relationship. On the night of September 3, 2004, defendant approached Mark. Earlier in the evening, the two men had had a hostile encounter over defendant's refusal{**66 AD3d at 302} to provide Mark with the number of someone from whom Mark could purchase marijuana. Mark admittedly had made fun of defendant during that encounter.

According to Mark's testimony, defendant rode up on his bicycle and immediately hit Mark in the face with a "metal object." Mark stood up and tried to defend himself by grabbing defendant by the collar with both hands, but defendant hit him in the face again with the metal object. Mark tried to take the object away from defendant, but defendant hit him in the face a third time, causing him to stumble backwards. At this point, defendant raised his arm and Mark heard what sounded like a firecracker.

Defendant testified to a different version of how the shooting occurred. Defendant testified that in the evening he came across Mark and two of Mark's friends sitting in a courtyard celebrating one of the friends' birthday. Despite the earlier angry exchange with Mark, defendant went over to say "Happy Birthday" as he knew the person whose birthday it was. One of the friends invited defendant to have a drink with them at which point Mark became angry, yelling that he did not want to share his Hennessy with defendant.

Defendant testified that he then pulled out a pair of brass knuckles that he was carrying and hit Mark in the face with them. Mark, at six feet tall and 215 pounds, was much bigger than defendant. Mark grabbed defendant by the neck. Defendant punched Mark in the face a second time. Defendant then saw Mark reaching for something in his waistband and Mark pulled out a gun with his right hand. Defendant grabbed Mark's right wrist. During the struggle, Mark's gun discharged, shooting Mark. Thus, defendant's version of events was critically different from Mark's, because, according to defendant, Mark pulled out Mark's own gun and it discharged while defendant was struggling with Mark, as opposed to defendant's bringing his own gun to the scene.

After being shot, Mark ran away from defendant. Meanwhile, according to defendant, after the shot was fired, Mark dropped the gun and held his stomach. Another person who had been with Mark picked up the gun, and both Mark and defendant fled. Defendant hailed a cab, and, after stopping at a friend's home at 118th Street and Lexington Avenue, took a Metro-North train back to Connecticut, where he had been living with his cousin. Defendant was eventually arrested in Connecticut.

Defendant was charged with attempted murder in the second degree, attempted assault in the first degree, criminal possession{**66 AD3d at 303} of a weapon in the second degree and assault in the second [*8]degree.

In its original charge to the jury regarding attempted assault in the first degree, the court instructed that "intent means conscious objective or purpose." After approximately two hours of deliberations, the jury sent the court the following note:

"We need further clarification on Count # 2 [attempted assault in the first degree], i.e. Does a spur of the moment action constitute intent? Please define intent. Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the 1st degree?"

The court read the note into the record and apprised the parties of the response it intended to give to the jury, namely, that it intended to: (1) define intent again; (2) answer "yes . . . , depending on the circumstances," to the question whether a "spur of the moment action" could{**66 AD3d at 304} constitute intent; and (3) answer "no" to the question whether defendant had to "come to the fight with the intent to shoot" in order to be convicted of attempted assault in the first degree.

Defense counsel asked the court to "just define intent for them and not to answer either of [the jury's] questions [except] to say it all depends on the circumstances and they are the finders of facts." The court reiterated that it intended to define intent and to answer the jury's questions.

Thereafter, the court addressed the jury. The court noted that it would provide the jurors with "the longer version of what constitutes intent," which "may very well answer the[] questions" posed in the jury's note. The court then defined intent as "a conscious objective to cause the act with which [the defendant] is charged." The court noted that the People have the burden "to prove the intent of the defendant beyond a reasonable doubt," and instructed, "If you find from the evidence that the defendant did not have a conscious objective to bring about the violation of law[,] you must find the defendant not guilty of this crime." The court then expanded on the definition provided in its initial instruction, by adding that the formation of intent "can be instantaneous or drawn out." The court concluded its definition by commenting that a determination of a defendant's intent "depends upon the peculiar circumstances of the case, upon the man's spoken words, his actions and sometimes upon a combination of both."

The court could have stopped there in answering the jury's question as to whether a "spur of the moment action" could constitute intent. However, the court continued by stating: "Now, going directly into your question does a spur of the moment action constitute intent, in this context I would say yes. Depending on the peculiar circumstances of the situation. In this instance my answer is yes." (Emphasis supplied.)

Then, the court related a hypothetical to the jury.

"Perhaps I can throw in an analog [sic], example [*9]removed from this particular pattern. Suppose two guys bump one another on the street, one guy says [']screw you['] to the other guy and this guy pulls out a pistol and shoots him. That intent in that instance was formulated almost instantaneously, spur of the moment. Again, that's an example. Here the answer is yes to that question. Could be drawn out, could be instantaneous. 'Did the accused have to come to the fight with the intent to shoot for there to be attempted assault in the first degree?' The answer to this is no. The defendant could have arrived at the scene to either confront or talk and then formulated the intent to shoot. So, the answer to the question one is yes and the answer to question two is no. You may resume deliberations."

After the jury left the courtroom to resume deliberations, defense counsel objected to the court's response to the jury note:

"I have an exception to the example you gave. I have no quarrel with you reading and defining intent, but answering the question and giving the example I think was just too close to the factual pattern here and that really prejudiced the defendant and I have to object to it."

The court noted defendant's exception. Five minutes later, the jury returned its verdict of guilty of attempted assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree.

In responding to jury requests, the trial court "is vested with some measure of discretion in framing its response and is in the best position to evaluate the jury's request in the first instance" (People v Malloy, 55 NY2d 296, 302 [1982], cert denied 459 US 847 [1982]). However, the court must issue instructions that are balanced (see People v Aleman, 12 NY3d 806 [2009]; People v Bell, 38 NY2d 116, 120 [1975] and "avoid even the appearance of bias" (People v Watkins, 157 AD2d 301, 307 [1990]). Accordingly,{**66 AD3d at 305} it is reversible error for the court to emphasize factors favorable to one side's theory of the case (see generally People v Brown, 129 AD2d 450, 451-453 [1987]; People v Melville, 90 AD2d 488, 488-489 [1982]).

While the court may provide hypothetical examples in its jury instructions "as an aid to understanding the applicable law" (People v Wise, 204 AD2d 133, 135 [1994], lv denied 83 NY2d 973 [1994]), the hypothetical should not be so "strikingly similar" to the facts before the jury as to convey the court's view of the evidence (People v Hommel, 41 NY2d 427, 430 [1977]). "[T]he crucial question is whether the charge, in its entirety, conveys an appropriate legal [*10]standard and does not engender any possible confusion" (Wise, 204 AD2d at 135). Thus, in People v Brown, this Court reversed a conviction because, to illustrate a situation where intent could be inferred, the trial court used a hypothetical of a person killed by a gunshot wound to the head, "surely an inappropriate illustration in a case in which the deceased died from a stab wound to the chest" (129 AD2d 454).

In the case before us, viewing the trial court's answer to the jury's question in its entirety, we find that the court violated these mandates to respond to jury inquiries in a balanced fashion that "does not engender any possible confusion." The court's response to the jury's note was improper because the court's answer inadvertently directed the jury to find that the prosecution had proven intent to shoot and because the facts of the hypothetical adopted the People's version of events.

The jury had asked whether intent can occur on the spur of the moment. In response, the court stated, "[I]n this context I would say yes. Depending on the peculiar circumstances of the situation. In this instance my answer is yes." The court then gave the jury a hypothetical example of criminal intent that mirrored Mark's (and therefore the prosecution's) version of how the crime occurred and instructed the jury that the shooter in the hypothetical exhibited criminal intent. Despite defense counsel's objection, the court did not give any curative instruction.

The court's answer to the jury's question about spur of the moment intent prejudiced defendant. In answering the jury's question, the court inadvertently answered the ultimate question in the case, because any reasonable juror could easily have concluded that the words "in this context" referred to the case at hand and that "yes" meant that defendant had acted with intent (see People v Watkins, 157 AD2d at 307 ["a court may not suggest its own opinion as to guilt"]).{**66 AD3d at 306}

The court compounded the prejudice by giving the jury a hypothetical involving "two guys" who "bump one another on the street" one says "[']screw you['] to the other guy and this guy pulls out a pistol and shoots him." This hypothetical was prejudicial because it closely resembled the prosecution's version of events: that defendant rode his bicycle into a courtyard where Mark was sitting, hit Mark and shot him. By giving this hypothetical and telling the jury that the criminal in the example acted with criminal intent, the court essentially instructed the jury that defendant intended to shoot Mark.

The court's instruction was particularly prejudicial given that it was hotly contested whether defendant brought his own gun to the scene or it was Mark's gun that discharged during the struggle with defendant. Which version of events to believe was critical to the determination of whether or not defendant had the requisite intent. The court's instruction took this determination away from the jury (see e.g. People v Hill, 52 AD3d 380, 382 [2008] [with respect to gang assault, analogy to orchestra could have led the jury to believe that any person involved in fight was guilty whether or not engaged in conduct intended to aid primary actor]).

That the court may have preceded this erroneous instruction with the standard instruction does not ameliorate this prejudice. It is irrelevant that the question that prompted the prejudicial instruction may have exhibited the jury's understanding that it was supposed to determine whether defendant had formed the requisite intent. The court's instruction essentially directed [*11]this jury, that was already struggling with the issue of criminal intent, to find in favor of the prosecution. The court failed to give any curative instruction after defense counsel objected. Thus, in light of the entire charge, I cannot agree with the majority that the court was merely providing further instruction on the issue of intent.

The cases the majority cites are vastly different from this case because in each one the charge as a whole conveyed the correct standard to the jury (see e.g. People v Umali, 10 NY3d 417 [2008] [erroneous instruction on justification defense that improperly shifted to defense the prosecution's burden to prove justification beyond a reasonable doubt was harmless where other instructions repeatedly informed the jury that it was the prosecution's burden and court advised jury that defendant never had the burden to prove anything]; People v Drake, 7 NY3d 28 [2006] [charge as a whole did not communicate that{**66 AD3d at 307} jurors should disregard expert testimony, but rather that expert testimony was admitted to provide guidance as to evaluating eyewitness testimony]; People v Fields, 87 NY2d 821 [1995] [reasonable doubt charge as a whole conveyed correct standard]).

It is a cornerstone of our legal system that the roles of the court and the jury are separate and distinct, particularly regarding the issue of intent:

"[T]he question of intent can never be ruled as a question of law, but must always be submitted to the jury. Jurors may be perverse; the ends of justice may be defeated by unrighteous verdicts, but so long as the functions of the judge and jury are distinct, the one responding to the law, the other to the facts, neither can invade the province of the other without destroying the significance of trial by court and jury." (People v Flack, 125 NY 324, 334 [1891]; see also People v Moran, 246 NY 100, 103 [Cardozo, Ch. J., 1927] ["Whenever intent becomes material, its quality or persistence—the deranging influence of fear or sudden impulse or feebleness of mind or will—is matter for the jury if such emotions or disabilities can conceivably have affected the thought or purpose of the actor"].)

Here, the court did not merely give the jury an erroneous context in which to evaluate the evidence. Rather, the court actually answered the jury's question, and in a way that the jury could easily have interpreted to mean that defendant had the requisite intent. The court immediately followed that answer with a hypothetical that mirrored the prosecution's version of events. The cumulative effect of this charge was to usurp the jury's function to come to its own conclusion about defendant's intent.

I am not unmindful of the difficulties trial judges face in responding meaningfully to questions from the jury. I recognize, as does the majority, that the standard charge may be insufficient to provide the jury with the information it needs to return a verdict. However, the paramount responsibility of a judge is to ensure a fair trial. Thus, while the majority would allow for "inartful phrasings" or "a degree of imperfection" in a judge's framing of "off-the-cuff answers," a question from the jury does not mean a judge may suggest his or her own opinion about the guilt of the defendant or offer a hypothetical that favors one side.{**66 AD3d at 308}

Contrary to the majority's position, this error was not harmless. Intent to cause serious physical injury by means of a deadly weapon is a critical element of attempted assault in the first [*12]degree (Penal Law § 120.10 [1]). The court's instruction took the determination of whether that element was proved away from the jury.

Catterson and McGuire, JJ., concur with Saxe, J.P.; Moskowitz and Acosta, JJ., dissent in a separate opinion by Moskowitz, J.

Judgment, Supreme Court, New York County, rendered February 27, 2007, affirmed.