
    The People of the State of New York, Respondent, v. John McCracken, Appellant.
   Judgment unanimously reversed on the law and facts and new trial granted. Memorandum: During the course of their deliberations the jury inquired if they might recommend leniency “ for any one or all of the defendants”. They were informed in substance by the trial court that while there was no statutory provision for such action they were not forbidden to do so, and if they wished, might do so. Prompt exception to the instruction was taken by appellant’s counsel. Thereafter the jury returned with a verdict finding appellant and his two eodefendants, Buck and McCoy, guilty of four counts of robbery, first degree, and one count each of grand larceny, first degree and assault, first degree. In addition, the jury made “a recommendation of leniency” only for appellant. The instruction was clearly erroneous (cf. People v. Sherwood, 271 N. Y. 427, 435). Inasmuch as we have heretofore affirmed the judgments of convictions of the codefendants, Buck and McCoy (18 A D 2d 967) we advert briefly to the facts that distinguish the instant appeal from our decisions therein. Not only was there no recommendation for the codefendants, but appellant presented testimony from his father that on the night of the commission of the alleged crimes he saw his son and at that time the latter was under the influence of alcohol and could hardly stand or walk. In addition evidence was presented as to the good character of appellant. In the light of this proof the jury may have had grave douibt as to what finding they should make. They sought refuge in their request as to whether they could recommend leniency. The jury was in effect invited to go beyond their province and in substance instructed that the law permitted such action. (Appeal from judgment of Monroe County Court convicting defendant of robbery, first degree, four counts, and grand larceny, first degree, one count.) Present — Williams, P. J., Bastow, Goldman, Henry and Noonan, JJ.  