People v. DeFiore

51 A.D.2d 806, 380 N.Y.S.2d 260, 1976 N.Y. App. Div. LEXIS 11391

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1976
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, dated May 21, 1975, convicting him of attempted possession of untaxed cigarettes, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant was indicted, along with two codefendants, and charged with the crime of unlawful possession of untaxed cigarettes, as a felony, in violation of section 481 of the Tax Law. At the termination of the trial court’s charge, and in response to a request by counsel for the two codefendants, made in the absence of the jury, the court recharged the jury. Included therein was an instruction regarding the lesser included offense of attempted possession of untaxed cigarettes. The trial court informed the jury that counsel for the codefendants had requested such charge. The jury thereupon convicted all defendants of attempted possession of untaxed cigarettes. In our view, the trial court erred in informing the jury that the additional charge dealing with the lesser offense was being given at the request of the defendants. That information tended to give the jury the impression that all of the defendants were desirous of being convicted of the lesser crime. Accordingly, a new trial has been ordered in the interest of justice (cf. People v Turner, 48 AD2d 674). Martuscello, Acting P. J., Rabin, Shapiro and Titone, JJ., concur; Cohalan, J., dissents and votes to affirm the judgment.