
    The People of the State of New York, Respondent, v Leroy Gofer, Appellant.
   Judgment, Supreme Court, Bronx County, rendered on January 16, 1974, after trial, Convicting defendant of felony murder and possession of a weapon as a felony, unanimously reversed, on the law, the facts and in the interests of justice, and a new trial directed. A close question was presented as to whether this defendant participated in the robbery during which the slaying occurred. On this record we conclude that the court committed reversible error when it charged the elements of the affirmative defense to felony murder set forth in subdivision 3 of section 125.25 of the Penal Law, which defense applies "in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime”. The defendant himself never asserted this defense. In fact, defendant presented no witnesses and offered no evidence on his behalf. "There was no basis in fact for that statement [affirmative defense] since defendant had denied all knowledge of and participation in the underlying crimes”. (People v Robinson, 36 NY2d 224, 227.) This unnecessary and unsolicited instruction led to some confusion on the part of the jury insofar as the burden of proof is concerned. This is borne out by the fact that, during their deliberations, the jury asked for additional instruction on (1) what is meant by reasonable doubt and (2) the affirmative defense to felony murder. The confusion of the jury is understandable, because, on the one hand, the court properly instructed the jury that the burden of proving the defendant’s guilt rested on the People beyond a reasonable doubt and, on the other hand, it charged the jury that the burden of proving the affirmative defense to felony murder rested upon the defendant to prove same by a fair preponderance of the credible evidence. This confusion would not have resulted if the court had refrained from charging on affirmative defense to felony murder. Concur—Stevens, P. J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.  