PEOPLE v. ROSENBERG, 293 N.Y. 16 (1944)

55 N.E.2d 848

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOEL ROSENBERG, Appellant.

Court of Appeals of the State of New York.Argued April 13, 1944
Decided May 25, 1944

Appeal from the Supreme Court, Appellate Division, Second Department, GOLDSTEIN, J.

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Henry G. Singer, Samuel Altman and William E. Risley for appellant.

Thomas Cradock Hughes, Acting District Attorney (Solomon A. Klein of counsel), for respondent.

Per Curiam.

The error in the supplemental charge, as to the fifth count of the indictment, was too serious to be disregarded. It was an instruction to the jury, in plain words, that, despite the positive statement of the prosecutrix that the transaction occurred on September 6, 1941, and on no other possible day, the jury might convict if it found that she was mistaken and that it really took place on some other day, close to September 6th. Appropriate — and repeated — exceptions and requests by appellant’s counsel, in the presence of the jury, brought forth only a statement by the court that he would “leave it to the jury.” All this amounted to the submission to the jury of “a theory of the facts which had no foundation in the evidence” (People v. Barberi, 149 N.Y. 256, 274). We consider also that this error as to the fifth count is not without bearing on the conviction of appellant on the other count (eighth) submitted to the jury. The acts charged in those two counts were, if the prosecution’s proof be accepted, intimately connected as being two of a series of similar frauds by the same man. On this proof, appellant must have been guilty of all those acts, or of none of them. The interests of justice require a reversal as to both

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counts. Since there must be a new trial, we do not discuss the other alleged errors complained of by appellant.

The judgments should be reversed and a new trial ordered. (See 293 N.Y. 697.)

LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS, CONWAY, DESMOND and THACHER, JJ., concur.

Judgments reversed, etc.