People v. Colon

12 A.D.2d 915, 211 N.Y.S.2d 291, 1961 N.Y. App. Div. LEXIS 12528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1961
• Status: Published

Opinion

Judgment convicting defendant of the crimes of knowingly possessing policy writings, knowingly possessing articles commonly used in the game of policy and receiving money in the game of policy, and sentencing defendant to serve a term of six months in the Workhouse, affirmed insofar as it convicts defendant under the first and second counts of the information and reversed on the law and the facts insofar as it convicts defendant under the third count of the information and sentences defendant to serve six months in the Workhouse. The third count of the information, charging the defendant with the crime of receiving money in the game of policy is dismissed, and the matter is remanded to the Court of Special Sessions for resentence on the conviction of defendant on the first and second counts of the information. The evidence is insufficient to sustain a conviction on the third count in the information. Since the sentence was predicated on a conviction on all three counts, the matter must be remitted for resentence on the basis of the elimination of the conviction on the third count. (See People v. Brod, 12 A D 2d 903.) Concur — Rabin, Valente and Eager, JJ.; Breitel, J. P., and Stevens, J., dissent and vote to reverse and dismiss in the following memorandum by Breitel, J. P.: I dissent and vote to reverse and dismiss the information on the ground that the proof does not establish guilt beyond a reasonable doubt, and on the further ground that the expert testimony does not satisfy the rule in People v. Pierson (279 App. Div. 509) and People v. Oak (283 App. Div. 1018).