People v. Di Alto ( 1965 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 20, 1964 upon his plea of guilty, convicting him of attempted robbery in the. third degree, and imposing sentence. Judgment reversed and matter remitted to the Criminal Term for further proceedings. Tinder the circumstances herein, the holding in People v. Serrano (15 N Y 2d 304) is determinative of this appeal and requires that the conviction be vacated and the defendant permitted to plead anew to the indictment. The contention of the District Attorney that the attempted robbery was “from the possession of and in the presence of ” Beekerman and Newman is not borne out by this record, nor does it appear that the crime charged in the indictment was committed by this appellant. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.