People v. Fava

Judgment unanimously reversed, on the law, and a new trial granted. Memorandum: In this case, where the defendant’s flight from police officers was unexplained, it was error for the Trial Judge to instruct the jury that “flight when unexplained is a consciousness of guilt and hence guilt itself” (see People v Yazum, 13 NY2d 302, 304; People v Leyra, 1 NY2d 199, 208-209; People v Fiorentino, 197 NY 560, 567; People v Giammatto, 273 App Div 1023). While a latter part of the instruction concerning flight included a correct statement of the effect to be given to unexplained flight, we cannot say that the jury was not influenced by the erroneous instruction equating the defendant’s unexplained flight with “guilt itself.” Since the proof against the defendant rested in large part upon the testimony of an accomplice whose credibility was in issue, the error cannot be deemed harmless (People v Crimmins, 36 NY2d 230). (Appeal from judgment of Monroe County Court, Mark, J. — conspiracy, second degree.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.