People v. Ercole
| Court | New York Court of Appeals |
| Writing for the Court | CONWAY |
| Citation | 4 N.Y.2d 617,152 N.E.2d 77,176 N.Y.S.2d 649 |
| Parties | , 152 N.E.2d 77 The PEOPLE of the State of New York, Appellant, v. Anniello ERCOLE, Also Known as 'T', Respondent. |
| Decision Date | 25 June 1958 |
Page 649
v.
Anniello ERCOLE, Also Known as 'T', Respondent.
Page 651
[152 N.E.2d 78] [4 N.Y.2d 618] Edward S. Silver, Dist. Atty., Brooklyn (Aaron Nussbaum, Brooklyn, of counsel), for appellant.
Edward H. Levine, Abraham H. Brodsky and Vernon C. Rossner, New York City, for respondent.
[4 N.Y.2d 619] CONWAY, Chief Judge.
In May of 1953 an indictment was returned against the defendant Ercole which contained four counts of larceny, the first for first degree grand larceny, and the remaining three for petit larceny. This indictment, drawn pursuant to section 276 of the Code of Criminal Procedure, is commonly known as a 'long form' indictment. At the trial, after a jury had been sworn and some preliminary testimony given, the People sought to introduce evidence that the defendant accomplished the larcenies by means of false pretenses. The court sustained the defendant's objection to this evidence on the ground that it was inadmissible under the indictment which failed to meet the requirements of subdivision 1 of section 1290-a of the Penal Law, Consol.Laws, c. 40, which provides, in part: 'If, however, the defendant made use of any false or fraudulent representation or pretense in the course of accomplishing, or in aid of, or in facilitiating the theft, evidence thereof may not be received at the trial unless the indictment or information alleges such representation or pretense * * *.' To meet the situation, the People moved under section 295-j of the Code of Criminal Procedure to amend the indictment by adding four more counts, each new count corresponding to each of the original counts except that the new [152 N.E.2d 79] counts contained an added allegation that the larceny was committed by the use of false pretense. This motion war granted over the defendant's objection, and the People proceeded with their proof of larceny by false pretense. The case was submitted to the jury on only the amended fifth count which charged first degree grand larceny accomplished by false pretense, and the jury brought in a verdict of guilty. The first four counts had been withdrawn at the close of the People's case, and the sixth, seventh, and eighth counts were withdrawn at the end of the whole case. The defendant appealed his conviction and obtained a reversal and dismissal of the indictment. This court, in People v. Ercole, 308 N.Y. 425, 126 N.E.2d 543, held
Page 652
that section 295-j was intended to apply only to the amendment of 'simplified' indictments. Thereafter, the Grand Jury returned the instant indictment which relates to the same offense charged by the fifth count of the former amended indictment. The defendant moved for dismissal of the indictment on the ground that it placed him twice in jeopardy for the same offense (N.Y.Const. art. I, § 6; Code Cr.Proc. [4 N.Y.2d 620] § 9). The motion was granted and the defendant's position was sustained by the Appellate Division, though by a closely divided court.There is only one crime of larceny now in this State (Penal...
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People v. Miller
...11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478; People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People v. Childers, 54 Misc.2d 752, 283 N.Y.S.2d 336; People v. Pariser, 50 Misc.2d 727, 271 N.Y.S.2d 26; People......
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People v. Ressler
...of the greater degree (People v. Palmer, 109 N.Y. 413, 17 N.E. 213; People v. McGrath, 202 N.Y. 445, 96 N.E. 92; People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; Matter of Fiorillo v. Farrell, 16 N.Y.2d 678, 261 N.Y.S.2d 300, 209 N.E.2d 290) although it has been the law of N......
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People v. Barrow
...The jeopardy is tested accordingly (Compare Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, with People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, 217 N.Y.S.2d 124, affd. 11 A.D.2d 906, 202 N.Y.S.2d 271, af......
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United States v. Wilkins, No. 373
...People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888); see also, People v. McGrath, 202 N.Y. 445, 96 N.E. 92 (1911); People v. Ercole, 4 N.Y.2d 617, 152 N.E.2d 77, 176 N.Y.S.2d 649 (1958). Yet it remained the law of New York that if the conviction on the lesser charge was left standing, either......
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People v. Miller
...11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92; People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478; People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People v. Childers, 54 Misc.2d 752, 283 N.Y.S.2d 336; People v. Pariser, 50 Misc.2d 727, 271 N.Y.S.2d 26; People......
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People v. Ressler
...of the greater degree (People v. Palmer, 109 N.Y. 413, 17 N.E. 213; People v. McGrath, 202 N.Y. 445, 96 N.E. 92; People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; Matter of Fiorillo v. Farrell, 16 N.Y.2d 678, 261 N.Y.S.2d 300, 209 N.E.2d 290) although it has been the law of N......
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People v. Barrow
...The jeopardy is tested accordingly (Compare Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, with People v. Ercole, 4 N.Y.2d 617, 176 N.Y.S.2d 649, 152 N.E.2d 77; People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, 217 N.Y.S.2d 124, affd. 11 A.D.2d 906, 202 N.Y.S.2d 271, af......
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United States v. Wilkins, No. 373
...People v. Palmer, 109 N.Y. 413, 17 N.E. 213 (1888); see also, People v. McGrath, 202 N.Y. 445, 96 N.E. 92 (1911); People v. Ercole, 4 N.Y.2d 617, 152 N.E.2d 77, 176 N.Y.S.2d 649 (1958). Yet it remained the law of New York that if the conviction on the lesser charge was left standing, either......