People v. Ercole

CourtNew York Court of Appeals
Writing for the CourtCONWAY
Citation4 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 Date25 June 1958

Page 649

176 N.Y.S.2d 649
4 N.Y.2d 617, 152 N.E.2d 77
The PEOPLE of the State of New York, Appellant,
v.
Anniello ERCOLE, Also Known as 'T', Respondent.
Court of Appeals of New York.
June 25, 1958.

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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35 practice notes
  • People v. Miller
    • United States
    • New York Court of Appeals
    • July 11, 1985
    ...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......
  • People v. Ressler
    • United States
    • New York Court of Appeals
    • March 31, 1966
    ...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......
  • People v. Barrow
    • United States
    • United States State Supreme Court (New York)
    • April 23, 1964
    ...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......
  • United States v. Wilkins, No. 373
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 1965
    ...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......
  • Request a trial to view additional results
35 cases
  • People v. Miller
    • United States
    • New York Court of Appeals
    • July 11, 1985
    ...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......
  • People v. Ressler
    • United States
    • New York Court of Appeals
    • March 31, 1966
    ...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......
  • People v. Barrow
    • United States
    • United States State Supreme Court (New York)
    • April 23, 1964
    ...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......
  • United States v. Wilkins, No. 373
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 1965
    ...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......
  • Request a trial to view additional results

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