People v. Smith

10 A.D.2d 736, 201 N.Y.S.2d 487, 1960 N.Y. App. Div. LEXIS 10938

Opinion

Appeal from a judgment of the County Court, Kings County, sentencing appellant, after he had been found guilty, by a jury, of grand larceny in the first degree, to serve from 7% to 10 years, as a second felony offender. Judgment reversed upon the law and a new trial ordered. (See People v. Elliott, 10 A D 2d 735.) Nolan, P. J., Ughetta, Kleinfeld and Brennan, JJ., concur; Christ, J., concurs in the reversal of the judgment but dissents from the ordering of a new trial and votes to dismiss the indictment, with the following' memorandum: In my opinion, the record fails to establish appellant’s guilt beyond a reasonable doubt, in that there is an absence of proof showing that he had any intention to commit a larceny.