People v. Himmel

10 A.D.2d 622, 200 N.Y.S.2d 330, 1960 N.Y. App. Div. LEXIS 11685

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 1960
• Status: Published

Opinion

Motion by defendants-appellants to reverse a judgment of the Court of Special Sessions of the City of New York, New York County, rendered June 4, 1959, convicting them of three separate violations of section 1141 of the Penal Law, and for a new trial granted. Defendants were tried and convicted upon an agreed statement of facts which was submitted to the trial court. As conceded by the District Attorney, thorough examination of the records of the Court of Special Sessions of the City of New York discloses that the statement is missing from the court’s files and is not to be found nor is there any likelihood of its recovery. In the absence of a sufficient case on appeal whereby appellate review of the sufficiency of evidence is precluded, a conviction must be reversed and a new trial had (People v. Cittrola, 213 App. Div. 674; People v. De Willcowsha, 246 App. Div. 285). Defendants need not proceed to argument of their appeal but are entitled to reversal of their convictions and the ordering of a new trial on this motion (see People v. Keefe, 254 App. Div. 683; People v. Kaplan, 278 App. Div. 665; People v. De Mayo, 2 A D 2d 985). Concur — Botein, P. J., Breitel, Rabin, M. M. Frank and Valente, JJ.