People v. Piazza

40 A.D.2d 1038, 339 N.Y.S.2d 928, 1972 N.Y. App. Div. LEXIS 2961

Opinion

Appeal by defendant from a judgment of' the Supreme Court, Richmond County, rendered March 24, 1972, convicting him of grand larceny in -the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and the facts, and indictment dismissed. With respect to any of the theories of larceny presented by the proof and submitted to the jury, we believe the People failed to prove that defendant’s acts had been done with criminal intent. And if we were not reversing and dismissing the indictment on this ground, we would reverse and direct a new trial because of prejudicial errors and improper comments in the trial court’s charge to the jury and because the People’s proof and the court’s charge effected an impermissible de facto amendment of the indictment and created, de facto, an impermissible duplicitous count in violation of CPL 200.30, 200.70. Rabin, P. J., Hopkins, Munder, Martuscello and Latham, JJ., concur.