People v. Cresong

52 A.D.2d 1011, 384 N.Y.S.2d 210, 1976 N.Y. App. Div. LEXIS 12905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 27, 1976
• Status: Published

Opinion

Appeal from a judgment of the County Court of Otsego County, rendered June 16, 1975, upon a verdict convicting defendant of the crime of criminal possession of stolen property in the first degree. On this appeal the defendant urges a reversal of the conviction on several grounds, and maintains that the sentence imposed was improper. As conceded by the People, the statute under which the defendant was sentenced as a second felony offender having been declared unconstitutional, he must be resentenced as a first felony offender (People v Parker, 49 AD2d 657; People v Morton, 48 AD2d 58). As to the alleged error on the part of the trial court in the admission of testimony of an accomplice, the record discloses that such testimony was properly received in rebuttal of the defendant’s testimony, and was amply corroborated by other evidence tending to connect the defendant with the commission of the crime charged. Nor did the court err in refusing to charge a lesser included offense, as requested, when, as here, there is no reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater (CPL 300.50, subd 1; People v Hubbard, 48 AD2d 941). We have considered defendant’s other contentions and alleged errors attributed to the trial court and find them totally without merit. Judgment modified, on the law, to the extent of vacating the sentence imposed, and matter remitted to the County Court for resentencing of defendant as a first felony offender and, as so modified, affirmed. Koreman, P. J., Greenblott, Main, Herlihy and Reynolds, JJ., concur.