Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Judgment unanimously reversed on the law and in the interest of justice and new trial granted. Memorandum: Defendant's conviction of burglary in the second degree (Penal Law § 140.25) is supported by legally sufficient evidence (see, People v Bleakley, 69 N.Y.2d 490, 495; People v Bull, 136 A.D.2d 929, lv denied 71 N.Y.2d 966; cf., People v Insogna, 86 A.D.2d 979). Further, the verdict was not against the weight of the evidence (see, People v Bleakley, supra, at 495). The People's case against the defendant, however, was based upon circumstantial evidence. While the trial court's charge to the jury on circumstantial evidence was not a misstatement of law, we conclude that, under the circumstances of this case, it failed to convey to the jury in substance that "it must appear that the inference of guilt is the only one that can fairly and reasonably be drawn from the facts, and that the evidence excludes beyond a reasonable doubt every reasonable hypothesis of innocence" (People v Sanchez, 61 N.Y.2d 1022, 1024; see also, People v Ford, 66 N.Y.2d 428, 441). Although the proof of guilt was legally sufficient to sustain the verdict, it was not overwhelming. Accordingly, the inadequacy of the charge was prejudicial error requiring reversal and a new trial on the convictions of burglary in the second degree and petit larceny in the interest of justice, notwithstanding defendant's failure to request such a charge or to except to the charge as given (see, People v Borazzo, 137 A.D.2d 96, 100, lv denied 72 N.Y.2d 916; People v Bernardo, 83 A.D.2d 1).