People v. Hollenbeck , 194 N.Y.S.2d 543 ( 1959 )

Defendant appeals from a judgment of conviction of the Chemung County Court, convicting him of the crime of larceny in the second degree. The indictment contained two counts, the first count charging burglary in the third degree and the second count charging grand larceny in the second degree. Briefly, the first count charged the defendant with breaking and entering a store. The second count charged that at the same time and place and as a part of the same transaction, he stole merchandise of the value of $234. The jury found defendant not guilty on the first count of burglary and found him guilty of the second count of grand larceny in the second degree. Appellant contends that the acquittal on the first count is tantamount to acquittal on the second count, and hence his conviction cannot stand. This contention cannot be sustained. Even considering the verdicts as inconsistent the acquittal on one count does not bar conviction on the other. The two counts charge separate and distinct crimes, and has the same effect as though there were two separate indictments. (People v. Haupt, 247 N. Y. 369; People ex rel. Patrek v. Ganter, 61 N. Y. S. 2d 572; People v. Snyder, 241 N. Y. 81.) The evidence amply sustains the conviction of grand larceny in the second degree. We note that Henderson G. Riggs, Esq., of Elmira, New York was assigned by this court to prosecute this appeal, and he has done so in an able and thorough manner. Judgment of conviction unanimously affirmed. Present — Poster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.,