SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 3, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
PETER PONTANI, APPELLANT
Appeal by defendant from a judgment of the County Court, Suffolk County, rendered September 9, 1968, convicting him of abortion and unlawful practice of medicine, upon a jury verdict, and imposing sentence.
Beldock, P. J., Christ, Brennan, Rabin and Kleinfeld, JJ., concur.
In our opinion the trial court committed no error in allowing into evidence the statement inculpating appellant, made by the co-defendant who was acquitted, and in charging the jury that, if they found a conspiracy to exist between appellant and said co-defendant, the statement might be considered in connection with the innocence or guilt of appellant. Even though no count of conspiracy was contained in the indictment, it was proper for the court to admit the statement and to charge as indicated (People v. Luciano, 277 N. Y. 348; People v. Bonsignore, 21 A.D.2d 309; United States v. Annunziato, 293 F. 2d 373), especially in view of the overwhelming proof of appellant's guilt (24B C. J. S., Criminal Law, § 1922 , pp. 163-167). Other points raised by appellant have been considered.
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