People v. Toodles

81 A.D.2d 768, 438 N.Y.S.2d 806, 1981 N.Y. App. Div. LEXIS 11406

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1981
• Status: Published

Opinion

— Judgment, Supreme Court, New York County, rendered April 23, 1979, unanimously modified, on the law, to the extent of dismissing the fourth count of the indictment charging burglary in the second degree, and vacating the sentence rendered pursuant to defendant’s guilty plea on such count, and otherwise affirmed. By a six-count indictment, defendant and two codefendants were charged with, inter alia, two counts of burglary in the second degree. Late in the jury trial, defendant and one codefendant pleaded guilty to all counts in the indictment. The court imposed a minimum period of imprisonment for each count for which defendant pleaded guilty, all to run concurrently. At the conclusion of the trial, the jury found the remaining codefendant, Aaron, guilty of each count in the indictment. Count No. 4 of the indictment accusing these three defendants of burglary in the second degree, omitted the words “with intent to commit a crime therein”, thus failing to allege a material element of the crime. Count No. 5 charging a second count of burglary in the second degree did allege all the necessary elements. Therefore, as the People concede, in accordance with People v Hall (48 NY2d 927), and this court’s decision on the appeal of the codefendant, Aaron, in People v Aaron (79 AD2d 575), the fourth count of the indictment should be dismissed and the sentence of three years to six years rendered on defendant’s guilty plea on such count should be vacated. We find the defendant’s other points on appeal to be without merit. Concur — Murphy, P.J., Kupferman, Birns, Markewich and Silver-man, JJ.