Citation Numbers: 50 A.D.2d 941
Filed Date: 12/31/1975
Status: Precedential
Modified Date: 1/12/2022
— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 11, 1974, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. We have examined in detail the issues raised by appellant on this appeal and find them to be without merit. In our opinion, he had a fair and impartial trial and the evidence adduced amply supported the verdict. Latham, Acting P. J., Margett and Brennan, JJ., concur; Cohalan, J., dissents and votes to reverse the judgment and dismiss the indictment, with the following memorandum, in which Munder, J., concurs: George Woods was indicted for the crimes of robbery in the second degree, grand larceny in the second degree, grand larceny in the third degree and burglary in the third degree. In substance it was alleged that on August 2, 1972 Woods and a male confederate (not apprehended) accosted the complaining witness on a Brooklyn street. Between them the two men perpetrated the confidence game of "finding” money in the street and offering her a share of it if she would put up some money of her own as evidence of good faith. The complainant testified at the trial that Woods told her she would have to give them (the two men) $2,500 "to make us know that you won’t tell anybody” that they had found the money and "for your own safety.” In due course she was persuaded to allow them to accompany her to her apartment. There she obtained her savings account passbook. With the two men still accompanying her, she proceeded to her bank, from which she withdrew $2,500 and she handed it over to the two men in a car parked nearby. She testified that she refused to accept a share of the "found money” which, of course, was nonexistent. She expressed fear for her safety at the hands of the two men had she not complied with their demand. At the conclusion of the People’s case, and on motion of the defense attorney, the trial court dismissed the two counts of grand larceny and the one count of burglary. In dismissing the larceny counts, the court commented that it was doing so only "because of failure of pleading” and, further, the court remarked that "the pleading should have been that grand larceny was committed by extortion, but because it wasn’t pleaded, and only because of that, I am granting the motion to dismiss that.” We consider the dismissal of the larceny counts to have been erroneous. The larceny committed in this case was not larceny by extortion, which must be specifically pleaded (Penal Law, § 155.45), but a common-law larceny by trick or by false pretenses and the indictment