SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 23, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
CHARLES COOPER, APPELLANT
Beldock, P. J., Benjamin, Munder and Kleinfeld, JJ., concur; Martuscello, J., dissents.
Judgment of Supreme Court, Queens County, rendered December 22, 1967, affirmed.
Martuscello, J., dissents and votes to reverse the judgment and to order a new trial as to all four counts, with the following memorandum:
I am of the opinion that defendant's possession of the keys and registration of the Buick automobile, without any proof of his presence in the car and of any other circumstances tending to connect him with the television set found in the trunk of the car, was insufficient to charge him with possession of said television set (People v. Spillman, 309 N. Y. 295). Accordingly, it was error to admit the television set into evidence. Although the television set only related to the burglary and larceny counts with respect to the Collier home, the conviction for burglary and larceny of the Foster home should also be set aside since it cannot be said whether the jury would have returned a verdict of guilty with respect to Foster charges if the improperly received evidence had been excluded (People v. Donovan, 13 N.Y.2d 148, 153).
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