A defendant has a right to be present at sidebar conferences during jury selection unless the questions relate solely to juror qualifications like physical impairments or work commitments.
A defendant was convicted of criminal possession of a controlled substance. During jury impaneling, the court conducted side-bar discussions with prospective jurors in the defendant's absence regarding their ability to remain objective and their potential biases. The defendant also challenged the court's jury instructions regarding reasonable doubt. The court held that while a court may conduct side-bar discussions in a defendant's absence regarding juror qualifications like physical impairments or work commitments, it may not explore a juror's background or ability to weigh evidence objectively without the defendant present. Additionally, an instruction requiring jurors to provide a fair, calm explanation for their position during deliberations improperly shifts the burden of proof to the defendant. The court reversed the judgment.
80 N.Y.2d at 250 Determining when sidebar questioning constitutes a material trial stage62 citing cases“explore prospective jurors' backgrounds and their ability to weigh the evidence objectively unless defendant is present”
- Lay v. United States, 831 A.2d 1015 (D.C. 2003).published “A court may conduct sidebar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments.”
- People v. Qatabi, 2026 NY Slip Op 00987 (N.Y. App. Div. 1st Dep't 2026).published Defendant validly waived his right to be present during voir dire sidebars ( see People v Antommarchi , 80 NY2d 247, 250 [1992]).
- People v. Benton, 2025 NY Slip Op 06559 (N.Y. App. Div. 3d Dep't 2025).publishedIt is well settled that "a defendant has the right to be present at every material stage of a trial" ( People v Malloy , 152 AD3d 968, 969 [3d Dept 2017] [internal quotation marks, brackets and citation omitted], lv denied 30 NY3d 981 [201…
- People v. Henehan, 2025 NY Slip Op 02972 (N.Y. App. Div. 3d Dep't 2025).publishedNext, we reject defendant's contention that he did not knowingly and voluntarily waive his right to be present at sidebar conferences ( see CPL 260.20; People v Antommarchi , 80 NY2d 247, 250 [1992]).
- People v. Hoyt, 2025 NY Slip Op 02241 (N.Y. App. Div. 3d Dep't 2025).published Defendant appeals. [FN1] We agree with defendant that he was improperly excluded from bench conferences during jury selection prior to executing an Antommarchi waiver, but conclude that the error is not reversible under the circumstances.…
- The People v. Fernando Ramirez, 41 N.Y.3d 406 (N.Y. 2024).publishedThe gravamen of a defendant’s right to be present at jury selection is to “hear questions intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the v…
- People v. Alfonso, 2024 NY Slip Op 00361 (N.Y. App. Div. 1st Dep't 2024).publishedAs an alternative holding, and to the extent the record permits review, defendant was not improperly excluded from any material portion of jury selection ( see People v Antommarchi , 80 NY2d 247, 250 [1992]).
- People v. McKenzie-Smith, 2022 NY Slip Op 04518 (N.Y. App. Div. 4th Dep't 2022).published We previously reversed the judgment convicting defendant ( McKenzie-Smith , 187 AD3d at 1669-1670), concluding that there was insufficient evidence that defendant or his counsel knowingly waived defendant's Antommarchi rights ( see general…
- People v. McKenzie-Smith, 187 A.D.3d 1668 (N.Y. App. Div. 4th Dep't 2020).publishedWe agree with defendant, however, that his right to be present during questioning of prospective jurors regarding "bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses" was violated ( People v Ant…
- People v. Schilling, 128 N.Y.S.3d 127 (N.Y. App. Div. 4th Dep't 2020).publishedWe reject that contention. " [A] sidebar interview that concerns a juror's background, bias or hostility, or ability to weigh the evidence objectively is a material stage of trial at which a defendant has a right to be present . . . , and…
Show 49 more citing cases
- People v. Johnson, 126 N.Y.S.3d 261 (N.Y. App. Div. 4th Dep't 2020).publishedSpecifically, after the first three jurors were sworn, the prosecutor and defense counsel both advised the court that they believed defendant's right to be present during a material sidebar conference had been violated ( see generally Peop…
- The People v. Robert Maffei, No. 25 (N.Y. May 7, 2020).publishedA defendant’s fundamental right to be present during the voir dire of prospective jurors is predicated on the right to personally assess the “facial expressions, demeanor and other subliminal responses” of potential jurors in order to choo…
- People v. Wilkins, 2019 NY Slip Op 6238 (N.Y. App. Div. 4th Dep't 2019).publishedDefendant contends that the court violated the rule in People v Antommarchi ( 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]) when it conducted several sidebar conferences in his absence and that reversal is required with respect…
- People v. Hymes, 174 A.D.3d 1295 (N.Y. App. Div. 4th Dep't 2019).publishedDefendant contends that he was denied his Antommarchi right to be present during material sidebar conferences ( see People v Antommarchi , 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]).
- People v. Geddis, 173 A.D.3d 1724 (N.Y. App. Div. 4th Dep't 2019).publishedWe agree with defendant, however, that his right to be present during questioning of prospective jurors regarding "bias, hostility, or predisposition to believe or discredit the testimony of potential witnesses" was violated ( People v Ant…
- People v. Paul, 2019 NY Slip Op 3166 (N.Y. App. Div. 4th Dep't 2019).publishedWe reject defendant's contention that his Antommarchi waiver, i.e., his waiver of the right to be present at sidebar conferences during jury selection ( see People v Antommarchi , 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]),…
- People v. Micolo, 171 A.D.3d 1484 (N.Y. App. Div. 4th Dep't 2019).publishedIt is well settled that "[a] defendant has the right to be present at all material stages of trial" ( People v Stewart , 28 NY3d 1091, 1092 [2016]), including during jury selection ( see People v Antommarchi , 80 NY2d 247, 250 [1992], rear…
- People v. Paul, 2019 NY Slip Op 3240 (N.Y. App. Div. 4th Dep't 2019).publishedWe reject defendant's contention that his Antommarchi waiver, i.e., his waiver of the right to be present at sidebar conferences during jury selection ( see People v Antommarchi , 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]),…
- People v. Durfey, 170 A.D.3d 1331 (N.Y. App. Div. 3d Dep't 2019).publishedWe also find no merit in defendant's contention that counsel was ineffective for failing to address defendant's Antommarchi rights, as defendant does not set forth, nor does the record reveal, any material stage of the proceedings for whic…
- People v. Crespo, 32 N.Y.3d 176 (N.Y. 2018).publishedIn People v Antommarchi ( 80 NY2d 247, 250 [1992]), we recognized that a defendant's fundamental right to be present at material stages of the trial under CPL 260.20 is violated by his or her absence during the questioning of prospective j…
- People v. Tyler, 140 A.D.3d 1617 (N.Y. App. Div. 4th Dep't 2016).published The record establishes that defendant was present at every sidebar conference when a prospective juror was questioned (cf. People v Davidson, 89 NY2d 881, 882 [1996]; People v Antommarchi, 80 NY2d 247, 250 [1992]), and “there is nothing in…
- People v. Lewis, 140 A.D.3d 1593 (N.Y. App. Div. 4th Dep't 2016).published We reject defendant’s contention that his right to be present during questioning of prospective jurors at sidebar conferences regarding bias, hostility, or predisposition was violated (see generally People v Antommarchi, 80 NY2d 247, 250 […
- People v. Taylor, 136 A.D.3d 1331 (N.Y. App. Div. 4th Dep't 2016).published We reject defendant’s contention that he did not knowingly and intelligently waive his right to be present at sidebar conferences during jury selection (see People v Antommarchi, 80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]).
- People v. McArthur, 113 A.D.3d 1088 (N.Y. App. Div. 4th Dep't 2014).published Defendant contends that he was denied his right to be present at all material stages of the trial inasmuch as he was not present for a bench conference that occurred during his testimony (see People v Antommarchi, 80 NY2d 247, 250 [1992],…
- People v. Hawkins, 113 A.D.3d 1123 (N.Y. App. Div. 4th Dep't 2014).published We reject that contention. “ ‘[A] sidebar interview that concerns a juror’s background, bias or hostility, or ability to weigh the evidence objectively is a material stage of trial at which a defendant has a right to be present. . . , and…
- People v. Clarke, 110 A.D.3d 1341 (N.Y. App. Div. 3d Dep't 2013).publishedWe reject defendant’s contention that his counsel inadequately waived his right to be present during sidebar conferences (see generally People v Antommarchi, 80 NY2d 247, 250 [1992]).
- People v. Bonilla, 41 Misc. 3d 894 (N.Y. Sup. Ct. 2013).publishedLikewise, a defendant has the right to be present at a pretrial hearing on the use of his prior bad acts (see id. at 660 ; Favor, 82 NY2d at 267 ), as well as at sidebar conferences with prospective jurors regarding their ability to be fai…
- People v. Burch, 97 A.D.3d 987 (N.Y. App. Div. 2012).published Although a criminal defendant indeed has a statutory right to be present for such conferences (see CPL 260.20; People v Vargas, 88 NY2d 363, 375-376 [1996]; People v Antommarchi, 80 NY2d 247, 250 [1992]), this right may be waived by the de…
- People v. Hoppe, 96 A.D.3d 1157 (N.Y. App. Div. 3d Dep't 2012).published We are unpersuaded by defendant’s contention that he was deprived of his right to be present during sidebar interviews with prospective jurors (see People v Antommarchi, 80 NY2d 247, 250 [1992]).
- People v. Tuff, 90 A.D.3d 1645 (N.Y. App. Div. 4th Dep't 2011).publishedContrary to defendant’s further contentions, County Court did not err in consolidating the indictments for trial (see People v Rogers, 245 AD2d 1041 [1997]), nor did the court violate defendant’s right to be present at sidebar conferences…
- People v. Quintana, 80 A.D.3d 499 (N.Y. App. Div. 1st Dep't 2011).publishedThe court did not deprive defendant of his right to be present at all material stages of his trial (see People v Antommarchi, 80 NY2d 247, 250 [1992]) when it excluded him from sidebar conferences at which counsel exercised peremptory chal…
- People v. Roberts, 80 A.D.3d 787 (N.Y. App. Div. 3d Dep't 2011).publishedWhile a defendant has the right to be present at such conferences (see People v Velasquez, 1 NY3d 44, 47-48 [2003]; People v Antommarchi, 80 NY2d 247, 250 [1992]; People v Horan, 290 AD2d 880, 883-884 [2002], lv denied 98 NY2d 638 [2002]),…
- People v. Hampton, 64 A.D.3d 872 (N.Y. App. Div. 3d Dep't 2009).publishedDefendant’s presence was not required during a sidebar conference conducted with a prospective juror because the questioning was unrelated to the juror’s bias, hostility or predisposition (see People v Antommarchi, 80 NY2d 247, 250 [1992];…
- People v. Camacho, 687 N.E.2d 396 (N.Y. 1997).published
- People v. Malloy, 152 A.D.3d 968 (N.Y. App. Div. 3d Dep't 2017).published
- People v. Perine, 3 A.D.3d 586 (N.Y. App. Div. 2d Dep't 2004).published
- People v. Rolle, 4 A.D.3d 542 (N.Y. App. Div. 2d Dep't 2004).published
- People v. Beverly, 6 A.D.3d 874 (N.Y. App. Div. 3d Dep't 2004).published
- People v. Ha, 14 A.D.3d 877 (N.Y. App. Div. 3d Dep't 2005).published
- People v. Sousa, 23 A.D.3d 697 (N.Y. App. Div. 3d Dep't 2005).published
- People v. Abdullah, 28 A.D.3d 940 (N.Y. App. Div. 3d Dep't 2006).published
- People v. Levy, 52 A.D.3d 1025 (N.Y. App. Div. 3d Dep't 2008).published
- People v. Beam, 78 A.D.3d 1067 (N.Y. App. Div. 2d Dep't 2010).published
- People v. Madera, 216 A.D.2d 89 (N.Y. App. Div. 1st Dep't 1995).published
- People v. Davis, 216 A.D.2d 314 (N.Y. App. Div. 2d Dep't 1995).published
- People v. Pinero, 220 A.D.2d 540 (N.Y. App. Div. 2d Dep't 1995).published
- People v. Davidson, 224 A.D.2d 354 (N.Y. App. Div. 1st Dep't 1996).published
- People v. Tolliver, 224 A.D.2d 924 (N.Y. App. Div. 4th Dep't 1996).published
- People v. Moe, 227 A.D.2d 253 (N.Y. App. Div. 1st Dep't 1996).published
- People v. Lucious, 269 A.D.2d 766 (N.Y. App. Div. 4th Dep't 2000).published
- People v. Marzug, 270 A.D.2d 945 (N.Y. App. Div. 4th Dep't 2000).published
- People v. Velasquez, 298 A.D.2d 608 (N.Y. App. Div. 2d Dep't 2002).published
- People v. Ellis, 306 A.D.2d 539 (N.Y. App. Div. 2d Dep't 2003).published
- People v. McKenna, 24 Misc. 3d 1 (N.Y. App. Term. 2009).published
- People v. Lee, 56 A.D.2d 1250 (N.Y. App. Div. 4th Dep't 2008).published
- Hogan v. West, 448 F. Supp. 2d 496 (W.D.N.Y. 2006).published
- Clark v. Poole, 440 F. Supp. 2d 235 (W.D.N.Y. 2006).published
- The People v. Thomas Jackson, 74 N.E.3d 302 (N.Y. 2017).published
- Dearstyne v. Mazzuca, 48 F. Supp. 3d 222 (N.D.N.Y. 2011).published
80 N.Y.2d at 251 Defining reasonable doubt and juror articulation obligations14 citing cases“the trial court's charge to the jury that for a doubt to be reasonable it 'must be one for which some reason can be given' did not impose any obligation upon the jurors to articulate reasons for such doubt, but merely 'define d the degree of clarity and coherence of thought necessary for the jurors…”
- People v. Facey, 127 A.D.3d 1256 (N.Y. App. Div. 3d Dep't 2015).publishedIn our view, this was a fundamental error, requiring the reversal of the judgment and a new trial (see Sullivan v Louisiana, 508 US 275, 278 [1993]; People v Antommarchi, 80 NY2d 247, 251-252 [1992]; People v Victor, 62 NY2d 374, 377 [1984…
- People v. Tubbs, 115 A.D.3d 1009 (N.Y. App. Div. 3d Dep't 2014).published Since it is a reasonable doubt, it is a doubt for which a reason could be given.” This adequately explained the concept to the jury (see People v Antommarchi, 80 NY2d 247, 251-252 [1992]; People v Pochily, 255 AD2d 695, 696 [1998], lv deni…
- People v. Cornelius, 89 A.D.3d 595 (N.Y. App. Div. 1st Dep't 2011).publishedAlthough it would have been the better practice to use the standard CJI instruction, the court’s charge, read as a whole, did not shift or misstate the burden of proof or expressly impose an affirmative obligation upon jurors to articulate…
- People v. Memminger, 1 A.D.3d 292 (N.Y. App. Div. 1st Dep't 2003).published
- People v. Rodriguez, 2 A.D.3d 1359 (N.Y. App. Div. 4th Dep't 2003).published
- People v. Molina, 10 A.D.3d 542 (N.Y. App. Div. 1st Dep't 2004).published
- People v. Wright, 22 A.D.3d 873 (N.Y. App. Div. 3d Dep't 2005).published
- People v. Swinson, 30 A.D.3d 1127 (N.Y. App. Div. 1st Dep't 2006).published
- People v. Gortspujuls, 44 A.D.3d 368 (N.Y. App. Div. 1st Dep't 2007).published
- People v. Cubino, 50 A.D.3d 312 (N.Y. App. Div. 1st Dep't 2008).published
Show 3 more citing cases
- People v. Alston, 211 A.D.2d 498 (N.Y. App. Div. 1st Dep't 1995).published
- People v. Davis, 304 A.D.2d 421 (N.Y. App. Div. 1st Dep't 2003).published
- People v. Porter, 304 A.D.2d 845 (N.Y. App. Div. 3d Dep't 2003).published
80 N.Y.2d at 252 Defining reasonable doubt and burden of proof in jury instructions10 citing casesreasonable doubt is an "honest doubt of the defendant's guilt for which a reason exists beyond the nature and quality of the evidence
- People v. Spencer, 89 A.D.3d 1156 (N.Y. App. Div. 3d Dep't 2011).publishedRental, 7 AD3d 949 , 953 n 3 [2004]). 2 The jury was properly instructed that defendant bore no burden and that the People had the burden of proving his guilt beyond a reasonable doubt (see People v Antommarchi, 80 NY2d 247, 252-253 [1992]…
- People v. LaValle, 817 N.E.2d 341 (N.Y. 2004).published
- People v. Drummond, 143 A.D.3d 836 (N.Y. App. Div. 2d Dep't 2016).published
- People v. Boykin, 14 A.D.3d 576 (N.Y. App. Div. 2d Dep't 2005).published
- People v. Giles, 20 A.D.3d 863 (N.Y. App. Div. 4th Dep't 2005).published
- People v. Moore, 29 A.D.3d 1077 (N.Y. App. Div. 3d Dep't 2006).published
- People v. Durkin, 200 A.D.2d 684 (N.Y. App. Div. 2d Dep't 1994).published
- People v. Salco, 302 A.D.2d 613 (N.Y. App. Div. 2d Dep't 2003).published
- People v. Handwerker, 12 Misc. 3d 19 (N.Y. App. Term. 2006).published
- Matter of Ricardo M., 2006 NY Slip Op 51468(U) (N.Y. Fam. Ct., Richmond Cty. 2006).unpublished
604 N.E.2d at 97 Permissibility of sidebar discussions without defendant present8 citing casesfailure to object to being excluded” would not be fatal to defendant’s claim
- Lay v. United States, 831 A.2d 1015 (D.C. 2003).published (A court may conduct sidebar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments.)
- State v. Yancey, 113 A.3d 685 (Md. 2015).published Such dialogue, “intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit 12 the testimony of potential witnesses” supports that a defendant “have the opportunity to assess the juror’s facial ex…
- State v. Kilmartin, 904 S.W.2d 370 (Mo. Ct. App. 1995).published
- Diaz v. Herbert, 317 F. Supp. 2d 462 (S.D.N.Y. 2004).published
- State v. Dishon, 687 A.2d 1074 (N.J. Super. Ct. App. Div. 1997).published
- State v. WA, 875 A.2d 882 (N.J. 2005).published
- People v. Williams, 52 A.D.3d 94 (N.Y. App. Div. 1st Dep't 2008).published
- State v. W.A., 875 A.2d 882 (N.J. 2005).published
80 N.Y.2d at 249 cited at this page1 citing case
- People v. Flinn, 7 N.E.3d 496 (N.Y. 2014).publishedWe hold that defendant validly waived his right under People v Antommarchi ( 80 NY2d 247, 249-250 [1992]) to be present during bench conferences at which prospective jurors were questioned on voir dire.
Other citing cases
- People v. Ford, 211 A.D.2d 438 (N.Y. App. Div. 1st Dep't 1995).published
v.
Domingo Antommarchi
OPINION OF THE COURT
Simons, J.A jury has convicted defendant of criminal possession of a controlled substance in the third degree and the Appellate Division has affirmed. He seeks reversal contending that (1) he was denied his constitutional and statutory right to be present during a material stage of the proceedings (see, US Const 6th, 14th Amends; NY Const, art I, § 6; CPL 260.20) and (2) the court’s instruction on reasonable doubt deprived him of due process of law under the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, §6). We agree that defendant was denied the right to be present during a material stage of the trial and that a portion of the court’s instruction was erroneous. We therefore reverse the order of the Appellate Division.
I
Defendant’s first claim is based upon his absence during[*250] part of the proceedings when the jury was impaneled. He was present in the courtroom when the court began the voir dire by asking prospective jurors to respond orally to questions contained in a questionnaire and to follow-up questions posed by the court and counsel. Thereafter, several prospective jurors, at the court’s invitation, went to the bench to speak about matters they did not wish to discuss publicly. The discussions were held on the record and in the presence of counsel, but without defendant. They addressed such matters as whether individual jurors would be able to remain objective despite experiences as crime victims or relationships with people who had been arrested, and whether they thought that defendant was guilty merely because he had been charged with participating in a drug sale. The court also asked at least one juror whether she could objectively assess the testimony of a police officer without being influenced by her friendships with other police officers.
As we have noted before, a defendant has a fundamental right to be present during any material stage of the trial (see, CPL 260.20; People v Turaine, 78 NY2d 871, 872; People v Mullen, 44 NY2d 1, 4-5) and questioning during the impaneling of the jury may constitute a material stage of the trial (see, People v Sloan, 79 NY2d 386; People v Velasco, 77 NY2d 469). A court may conduct side-bar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments (see, People v Velasco, 77 NY2d, at 472-473, supra). The court may not, however, explore prospective jurors’ backgrounds and their ability to weigh the evidence objectively unless defendant is present. Defendants are entitled to hear questions intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the venire person’s answers so that they have the opportunity to assess the juror’s "facial expressions, demeanor and other subliminal responses” (see, People v Sloan, 79 NY2d, at 392, supra).
By questioning the prospective jurors’ ability to weigh evidence objectively and to hear testimony impartially, the court violated defendant’s right to be present during a material part of the trial. Moreover, because defendant had a fundamental right to be present, his failure to object to being excluded from the side-bar discussions is not fatal to his claim (see, People v Dokes, 79 NY2d 656, 662).
[*251] II
Defendant also contends that the court’s charge on reasonable doubt was erroneous. In its main charge, the court instructed the jury that:
"A reasonable doubt is a doubt based upon reason.
It is a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room.
It must be a doubt based upon the evidence or the lack of evidence in this case.”
The court delivered somewhat similar instructions during the jury’s deliberations in an Allen charge (see, Allen v United States, 164 US 492, 501-502):
"You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on any relative point or material element or on the evidence or lack of it, and when one or more of your fellow jurors questioned you about it, you would be willing and able to give him what you believe is a fair, calm explanation for your position based upon the evidence or the lack of evidence in this particular case.”
Defendant claims that these instructions deprived him of a fair trial because they unfairly advised the jury that a juror’s doubt about guilt was not "reasonable” unless the juror was able to articulate the basis for it and because the instruction improperly shifted the burden of proof to defendant. We conclude the instruction in the main charge did not suffer from those faults but that the instruction in the Allen charge did. The difference is between a charge which essentially defines the degree of clarity and coherence of thought necessary for the jurors to conclude they harbor a reasonable doubt and one which imposes an affirmative obligation on the juror to specifically articulate the basis for such doubt.
Reasonable doubt, the standard by which criminal guilt or innocence must he determined, is a nebulous concept not susceptible of precise definition. Necessarily, trial courts must use general terms to explain to the jury the important yet subtle difference between a reasonable doubt and one which is based on conjecture or caprice. Nonetheless, the distinction is critical, for the essence of the jury system is the deliberative process by which a number of intellects are brought to bear on assessing and evaluating the evidence presented at trial to[*252] arrive at a just verdict. A decision based on a whim or a hunch involves no intellectual effort and the basis for it cannot be expressed to, or evaluated by, fellow jurors and if the system is to work as intended, the jurors must engage in reasoned discussion of the evidence. Thus, it is not surprising, nor improper, for a court to instruct the jury that a reasonable doubt is one for which a reason can be given, nor to augment that definition with an explanation that the doubt should be sufficiently clear so that the juror would be capable of giving a reason for his or her views. Indeed, it is difficult to envision how jurors could follow the manifestly proper instructions of the court to listen to other jurors, give their views careful consideration, and reason together when considering the evidence if none of the individual jurors were able to express the reasons underlying their vote (see, People v Guidici, 100 NY 503, 510). Consequently, for over 100 years we have approved language defining a reasonable doubt as one which a juror could, if called upon to do so, express or articulate (see, People v Malloy, 55 NY2d 296, cert denied 459 US 847; People v Guidici, 100 NY 503, supra; People v Lagroppo, 90 App Div 219, affd 179 NY 126; see also, People v Serrano, 170 AD2d 269, lv denied 77 NY2d 1000; People v Jones, 162 AD2d 204, lv denied 76 NY2d 859; People v Quinones, 123 AD2d 793).
The language used in the Allen charge, however, went beyond permissible bounds by placing on each juror the express duty of giving a "fair, calm explanation for your position”. Manifestly, the burden of proving guilt beyond a reasonable doubt in a criminal proceeding must always remain with the People (see, In re Winship, 397 US 358). An instruction that requires jurors to supply concrete reasons "based upon the evidence” for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes (see, State v Cohen, 108 Iowa 208, 78 NW 857, 858; Siberry v State, 133 Ind 677, 685, 33 NE 681). As such, the charge actually reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant’s guilt (see, Pettine v Territory of New Mexico, 201 F 489, 496-497). Consequently, the instruction in the court’s Allen charge violated the Due Process Clauses of both the State and Federal Constitutions. While the instructions con[*253] tained in the court’s main charge did not constitute reversible error, to avoid error trial courts would be wise if using similarly worded instructions in the future to follow them with a clarifying statement that the jurors have no obligation to articulate the basis for their doubts.
Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.
Chief Judge Wachtler and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.
Order reversed, etc.