SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 1, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PETER FERRARA, APPELLANT
Appeal from a judgment of the County Court, Nassau County, rendered December 12, 1966, convicting defendant of first degree robbery, first degree grand larceny and two counts of second degree assault, upon a jury verdict, and imposing concurrent sentences of 15 to 60 years on the robbery count, 10 to 20 years on the larceny count and 5 to 10 years on each assault count.
Beldock, P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
In our opinion, defendant was deprived of a fair trial by the following errors: (a) on the direct examination of an accomplice, called as a People's witness, the prosecutor elicited testimony that he had pleaded guilty to the very crime for which defendant was being tried, and the court repeated that testimony in his charge, without instructing the jury that it could be considered only as to the witness's credibility and not as to defendant's guilt (People v. Colascione, 22 N.Y.2d 65; People v. Edwards, 282 N. Y. 413; People v. Ryan, 27 A.D.2d 698; People v. Curatolo, 7 A.D.2d 996; Payton v. United States, 222 F.2d 794, 796); (b) the court's charge was inadequate on the subject of accomplices, testimony by accomplices and the need for corroboration of such testimony (see People v. Curatolo, supra; People v. Sparks, 24 A.D.2d 538; People v. Watford, 19 A.D.2d 731); and (c) the court charged the jury that it could convict defendant as a principal even if he was not present at the crime scene, despite the fact that there was no proof to support such a theory of guilt (see People v. Mullen, 22 A.D.2d 756; People v. Wright, 17 A.D.2d 151, 152, cert. den. 379 U.S. 938).
Judgment reversed, on the law, and new trial ordered. The findings of fact below have not been considered.
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