People v. Sanders

45 A.D.2d 768, 357 N.Y.S.2d 131, 1974 N.Y. App. Div. LEXIS 4663

Opinion

Appeal by defendant from a judgment of' the County Court, Nassau County, rendered December 5, 1972, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant, along with a codefendant (Clarke), was convicted of robbery in the first degree. They had been charged with aiding ánd abetting one Edward G-ladman, the actual perpetrator of the robbery. As we noted in our decision on the codefendant’s appeal (People v. Clarke, 43 A D 2d 834), the evidence presented at the trial could have supported a finding of guilt of the lesser included crime of criminal facilitation in the second degree (Penal Law, § 115.00). Under the circumstances,, the trial court’s failure to charge the jury on criminal facilitation in the second degree, despite defendant’s request for such a charge, requires reversal and a new trial. Martuscello, Acting P. J., Latham, Shapiro, Cohalan and Brennan, JJ., concur.