People v. Jackson

52 A.D.2d 1038, 384 N.Y.S.2d 296, 1976 N.Y. App. Div. LEXIS 12946

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was tried by the court without a jury under an indictment charging him with burglary, third degree and attempted petit larceny. Proof of his guilt was overwhelming and at the conclusion of the evidence the record indicates that the court announced its verdict that the defendant was guilty "of both counts in this indictment * * * burglary third degree, and petit larceny.” It is not clear whether the error was made by the stenographer in recording the court’s verdict, or was the result of misstatement by the court. Notably, the attorneys did not object or move to correct the record, and the clerk’s minutes and certificate of conviction show a judgment convicting defendant of attempted petit larceny. The conviction was for that crime and neither the indictment nor the evidence would support conviction for any other crime under the second count of the indictment. (Appeal from judgment of Supreme Court, Erie County convicting defendant of burglary, third degree and attempted petit larceny.) Present—Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.