People v. Ercole

CourtNew York County Court
Writing for the CourtBARSHAY
Citation154 N.Y.S.2d 128,2 Misc.2d 1015
PartiesThe PEOPLE of the State of New York, Plaintiffs, v. Anniello ERCOLE, Defendant.
Decision Date14 August 1956

Page 128

154 N.Y.S.2d 128
2 Misc.2d 1015
The PEOPLE of the State of New York, Plaintiffs,
v.
Anniello ERCOLE, Defendant.
Kings County Court.
Aug. 14, 1956.

Page 129

[2 Misc.2d 1016] Edward S. Silver, Dist. Atty., of Kings County, Brooklyn, Aaron Koota, New York City, and Aaron Nussbaum, Asst. Dist. Attys., Brooklyn, for the people.

Abraham H. Brodsky, and Edward H. Levine, New York City, for defendant.

BARSHAY, Judge.

The defendant moves to dismiss the indictment (2290/55) on the ground that he is about to be twice put in jeopardy for the same offense in violation of his constitutional guarantee that 'No person shall be subject to be twice put in jeopardy for the same offense.' N.Y.Constitution, Art. 1, § 6. The facts briefly stated are as follows:

[2 Misc.2d 1017] The indictment (1022/53) which was returned against the defendant in May of 1953 contained four counts of common law larceny, 1290, Penal Law namely, one count alleging grand larceny, first degree, and three counts of petit larceny. This indictment was prepared in accordance with Section 276 of the Code of Criminal Procedure and is commonly known as a 'long form indictment.'

When the People sought to introduce evidence at the trial that the defendant made use of a false or fraudulent representation or pretense in the commission of the larceny, it was met with an objection by the defendant that such testimony was inadmissible since the indictment failed to meet the requirements of Subdivision 1 of Section 1290-a of the Penal Law which provides as follows: 'if * * * the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretence.'

Since the indictment aforementioned failed to allege a false or fraudulent representation or pretense in connection with the larceny, the trial court properly sustained the objection. To meet the situation the People

Page 130

moved the Court, pursuant to Section 295-j of the Code of Crim.Proc., to amend the indictment by adding four more counts, each new count corresponding to one of the original ones, except that each new count contained an added allegation not found in any of the first four that the larceny was effected by defendant's false pretense and representation. This amendment was granted over the defendant's objection.

Fortified with the amendment the People then offered proof of the defendant's false and fraudulent representations, which proof was inadmissible under the original indictment. The case was ultimately submitted to the jury only on the amended 'fifth count,' which charged the defendant with grand larceny in the first degree by false pretenses. All other counts were dismissed. The defendant was found guilty, and simultaneously with the imposition of sentence, the trial court granted a certificate of reasonable doubt.

On appeal the Appellate Division, while affirming the facts, reversed the conviction on the law alone and dismissed the indictment, 284 App.Div. 974, 134 N.Y.S.2d 794. The reversal was on a...

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4 practice notes
  • Bland v. Supreme Court, New York County
    • United States
    • New York Court of Appeals
    • November 29, 1967
    ...N.Y.S.2d 8; People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647; People v. Clark, 3 A.D.2d 700, 159 N.Y.S.2d 66; People v. Ercole, 2 Misc.2d 1015, 154 N.Y.S.2d 128, affd. 4 A.D.2d 881, 167 N.Y.S.2d 548, revd. on other grounds 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex r......
  • People v. Caiden
    • United States
    • New York Court of Special Sessions
    • October 25, 1956
    ...and evidence given.' See also People v. Nikiel, 153 N.Y.S.2d 953 (Supreme Court, Erie County, July 9, 1956), and People v. Ercole, 154 N.Y.S.2d 128 (Kings County Court, August 14, The defendant never having been tried on the information (Index No. 5656, 1952) previously filed against him, h......
  • People v. Ercole
    • United States
    • New York Supreme Court Appellate Division
    • October 21, 1957
    ...ground of double jeopardy an indictment for grand larceny in the first degree. Order affirmed on opinion of County Judge Hyman Barshay (2 Misc.2d 1015, 154 N.Y.S.2d WENZEL, Acting P. J., and MURPHY and HALLINAN, JJ., concur. BELDOCK, Justice, dissents and votes to reverse the order and to d......
  • People v. Ercole
    • United States
    • New York Court of Appeals
    • February 26, 1959
    ...the indictment, on ground that it placed him twice in jeopardy for the same offense. The County Court, Kings County, Hyman Barshay, J., 2 Misc.2d 1015, 154 N.Y.S.2d 128, entered an order dismissing the indictment, and the People of the State of New York The Appellate Division, 4 A.D.2d 881,......
4 cases
  • Bland v. Supreme Court, New York County
    • United States
    • New York Court of Appeals
    • November 29, 1967
    ...N.Y.S.2d 8; People ex rel. Meyer v. Warden, 269 N.Y. 426, 199 N.E. 647; People v. Clark, 3 A.D.2d 700, 159 N.Y.S.2d 66; People v. Ercole, 2 Misc.2d 1015, 154 N.Y.S.2d 128, affd. 4 A.D.2d 881, 167 N.Y.S.2d 548, revd. on other grounds 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex r......
  • People v. Caiden
    • United States
    • New York Court of Special Sessions
    • October 25, 1956
    ...and evidence given.' See also People v. Nikiel, 153 N.Y.S.2d 953 (Supreme Court, Erie County, July 9, 1956), and People v. Ercole, 154 N.Y.S.2d 128 (Kings County Court, August 14, The defendant never having been tried on the information (Index No. 5656, 1952) previously filed against him, h......
  • People v. Ercole
    • United States
    • New York Supreme Court Appellate Division
    • October 21, 1957
    ...ground of double jeopardy an indictment for grand larceny in the first degree. Order affirmed on opinion of County Judge Hyman Barshay (2 Misc.2d 1015, 154 N.Y.S.2d WENZEL, Acting P. J., and MURPHY and HALLINAN, JJ., concur. BELDOCK, Justice, dissents and votes to reverse the order and to d......
  • People v. Ercole
    • United States
    • New York Court of Appeals
    • February 26, 1959
    ...the indictment, on ground that it placed him twice in jeopardy for the same offense. The County Court, Kings County, Hyman Barshay, J., 2 Misc.2d 1015, 154 N.Y.S.2d 128, entered an order dismissing the indictment, and the People of the State of New York The Appellate Division, 4 A.D.2d 881,......

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