People v. Rodriquez , 158 N.Y.S.2d 69 ( 1956 )

Appeal from a judgment of the County Court, Queens County, convicting appellant of burglary in the third degree and petit larceny, and from the sentence imposed. Judgment reversed upon the facts and new trial ordered, on the authority of People v. Benoit (ante, p. 995). No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment. Beldoek, Ughetta and Kleinfeld, JJ., concur; Nolan, P. J., and Wenzel, J., dissent and vote to affirm the judgment, with the following memorandum: Although the court undoubtedly had the power, in its discretion, to reopen the case to hear the additional testimony, we are unable to say that it was an abuse of discretion, under the circumstances, not to have done so.