People v. Gordon 40 A.D.2d 835

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 26, 1971, convicting him of robbery in the second degree, grand larceny in the third degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and 'as a matter of discretion in the interest of justice, and new trial ordered. The trial court charged the jury that it must consider all the testimony, including the character evidence elicited by defendant, and that, if they concluded he was guilty, the character evidence could be no obstacle to the rendition of a guilty verdict. The court denied defendant’s request to charge the jury in substance that character evidence, if believed by it, may, when considered with all the other evidence in the case, create a reasonable doubt where otherwise no reasonable doubt would exist. In our opinion defendant was entitled to have the jury charged substantially as requested and the refusal to do so constituted reversible error (Richardson, Evidence [9th ed.], p. 140; and cases there cited). On the basis of the record presented it is our opinion that the interests of justice will best be served by a new trial. Latham, Acting P. J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.