People v. Rodriguez

75 A.D.2d 829, 427 N.Y.S.2d 466, 1980 N.Y. App. Div. LEXIS 11429

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 12, 1978, convicting him of criminal possession of stolen property in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The record reveals that the Trial Judge, in his charge, failed to instruct the jury that, in order to return a verdict of guilty, it was necessary to find that defendant was aware that the property which he allegedly possessed was stolen (see Matter of Tony M., 44 NY2d 899; 2 CJI [NY] PL 165.15 [1], p 1047). Since the omission related to an important element of the crime charged, which had to some extent been placed in issue by the defendant’s case, we believe that the trial court’s error deprived defendant of a fair trial. Therefore, even though no exception to the charge was taken, a new trial is required. Because reversal is clearly required in view of the erroneous charge, we find it unnecessary to reach the remaining issue raised on appeal. Gibbons, J. P., Gulotta, Margett and O’Connor, JJ., concur.