People v. Malatek

2 A.D.2d 683, 152 N.Y.S.2d 381, 1956 N.Y. App. Div. LEXIS 5139

Opinion

Appeal from a judgment of the Court of Special Sessions of the City of New York, Borough of Queens, adjudging appellant to be a youthful offender after trial, and from the sentence imposed. Appellant, a student in Newtown High School in Elmhurst, Queens County, was discovered in a dressing room in which he was not supposed to be. This room adjoined the organ loft. There were a number of organ reeds scattered on the floor of the room; he picked some of them up. Upon being discovered he stuffed these reeds into his pocket. The reeds were not produced on the trial, nor was any evidence as to their value adduced. Judgment reversed on the law and the facts and information dismissed. An element of the crime of petit larceny, of which appellant was accused as a specification of the charge of being a youthful offender, is that the property alleged to have been stolen must have some value, however minute. There is an utter lack of evidence as to the value of these reeds and the court was not afforded an opportunity to inspect them to aid it in reaching a conclusion as to whether or not they had any value at all. Furthermore, in our opinion, the felonious intent of appellant was not proved beyond a reasonable doubt. No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.