SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 29, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOHN ERNEST DENNY, APPELLANT
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 21, 1962, convicting him of grand larceny in the first degree, upon a jury verdict, and imposing sentence.
Christ, Acting P. J., Rabin, Benjamin, Martuscello and Kleinfeld, JJ., concur.
It was prejudicial error to refuse to submit to the jury the lower degree of petit larceny (People v. Malave, 21 N.Y.2d 26, 29). Since appellant has completed his sentence, the indictment should be dismissed (People v. Kvalheim, 17 N.Y.2d 510).
Judgment reversed, on the law, and indictment dismissed. The findings of fact below are affirmed.
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