People v. Greico

17 A.D.2d 855, 233 N.Y.S.2d 528, 1962 N.Y. App. Div. LEXIS 7365

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1962
• Status: Published

Opinions

Appeal by the defendants John Shahinian and Lillian Shahinian from judgments of the County Court, Dutchess County, rendered September 20, 1960 after a jury trial, convicting them of conspiracy, burglary in the third degree and grand larceny in the first degree, and imposing sentence. The codefendant Greico was acquitted. Judgments reversed on the law and on the facts and a new trial ordered as to both appellants. While the evidence was largely circumstantial, we believe it was sufficient to establish, beyond a reasonable doubt, the appellants’ guilt of the crimes of conspiracy and grand larceny in the first degree. However, we are of the opinion that their guilt upon the charge of burglary in the third degree was not so proved. No evidence was adduced of a breaking into the fur shop claimed to have been burglarized. It is possible that the door to the shop had -been left open by the employee who had a key to the door, but such employee was not called as a witness. (People v. Krevoff, 11 A D 2d 1053; cf. People v. Taylor, 15 A D 2d 962.) Sufficient evidence to establish the breaking may be available to the People on a new trial. We are also of the opinion that the Trial Judge erred (a) in charging the jury that their verdict must be the same on all three counts of the indictment (People v. Moore, 261 App. Div. 876; People v. Hicks, 11 A D 2d 1076); and (b) in failing clearly and fully to instruct the jury, both at the time testimony was received as to admissions by the codefendant Greico inculpating appellants, and at the time of the charge, that such testimony was not binding on appellants (cf. People v. Marshall, 306 N. Y. 223; People v. Lombard, 4 A D 2d 666). Although no exceptions to the charge were taken and no requests to charge were made on behalf of appellants, it is our opinion that the errors referred to were prejudicial and that a new trial is required in the interests of justice (Code Crim. Pro., § 527). Ughetta, Christ, Brennan and Hopkins, JJ., concur;