People v. Norton

285 A.D. 1165, 140 N.Y.S.2d 382, 1955 N.Y. App. Div. LEXIS 7024

Opinion

Judgments of the County Court, Queens County, convicting defendants of the crimes of robbery, first degree, grand larceny, first degree, and assault, second degree, reversed on the law and the facts and a new trial ordered. In our opinion, the evidence was sufficient to sustain the verdict of the jury. The People’s case, however, depended entirely on the testimony of the complaining witness, and although his testimony was uncontradicted, the jury deliberated for approximately seven hours before returning with a verdict of guilty. In his summation the assistant district attorney who presented the People’s case was permitted to make repeated references to the fact that the testimony of the complaining witness was not contradicted, and objection to such comment was overruled. Since much of the testimony alluded to could only have been contradicted by appellants, who did not testify in their own defense, we are compelled to assume that the statements made were intended to be in disregard of the spirit and letter of section 393 of the Code of Criminal Procedure. The comments complained of were concededly improper and are indefensible. On the record presented they may not be disregarded. No separate appeal lies from the sentences, which have been reviewed on the appeals from the judgments of conviction. Nolan, P. J., Wenzel, Beldock. Murphy and Ughetta, JJ., concur.