People v. Ercole

CourtNew York Supreme Court Appellate Division
Writing for the CourtBELDOCK; UGHETTA, J., concurs with BELDOCK
Citation167 N.Y.S.2d 548,4 A.D.2d 881
PartiesThe PEOPLE of the State of New York, appellant, v. Anniello ERCOLE also known as 'T', respondent.
Decision Date21 October 1957

Page 548

167 N.Y.S.2d 548
4 A.D.2d 881
The PEOPLE of the State of New York, appellant,
v.
Anniello ERCOLE also known as 'T', respondent.
Supreme Court, Appellate Division, Second Department.
Oct. 21, 1957.

Aaron Nussbaum, Brooklyn, for appellant.

Edward H. Levine, New York City, Abraham H. Brodsky, New York City, on the brief, for respondent.

Before WENZEL, Acting P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.

Page 549

MEMORANDUM BY THE COURT.

Appeal from an order of the County Court, Kings County, dismissing on the 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 128).

WENZEL, Acting P. J., and MURPHY and HALLINAN, JJ., concur.

BELDOCK, Justice, dissents and votes to reverse the order and to deny the motion to dismiss the indictment, with the following memorandum.

On May 29, 1953 respondent was indicted, by long form indictment, on four counts of common-law larceny--one count of grand larceny and three counts of petit larceny. None of the counts alleged that respondent made use of false or fraudulent representations in the course of accomplishing the various thefts. Under the circumstances, evidence of such representations could not be received over respondent's objection. Penal Law, § 1290-a. When the People sought to introduce such evidence during the course of the trial in November, 1953 respondent objected. Thereupon, acting pursuant to section 295-j of the Code of Criminal Procedure, the trial court permitted the People, over respondent's objection, to amend the indictment by adding four new counts, each the same as the four original counts, except that allegations of false pretense and fraudulent representation were included in the new counts. Respondent was thereafter found guilty only of count 5 (grand larceny in the first degree by false pretenses), the other 7 counts having been dismissed. The judgment of conviction was reversed by this court and the indictment dismissed [4 A.D.2d 882] (People v. Ercole, 284 App.Div. 974, 134 N.Y.S.2d 794). The dismissal of the indictment was affirmed by the Court of Appeals (People v. Ercole, 308 N.Y. 425, 126 N.E.2d 543) on the ground that the trial court was without statutory authority to grant the amendment of the indictment.

On November 9, 1955 respondent was indicted for grand larceny in the first degree committed as a result of false pretenses and fraudulent...

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2 practice notes
  • Bland v. Supreme Court, New York County
    • United States
    • New York Court of Appeals
    • November 29, 1967
    ...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 rel. Blue v. Kearney, 181 Misc. 981, 44 N.Y.S......
  • People v. Ercole
    • United States
    • New York Court of Appeals
    • February 26, 1959
    ...known as 'T', Respondent. Court of Appeals of New York. Feb. 26, 1959. Appeal from Supreme Court, Appellate Division, Second Department, 4 A.D.2d 881, 167 N.Y.S.2d Defendant was charged by indictment with first degree grand larceny by false pretense, and he made a motion for dismissal of th......
2 cases
  • Bland v. Supreme Court, New York County
    • United States
    • New York Court of Appeals
    • November 29, 1967
    ...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 rel. Blue v. Kearney, 181 Misc. 981, 44 N.Y.S......
  • People v. Ercole
    • United States
    • New York Court of Appeals
    • February 26, 1959
    ...known as 'T', Respondent. Court of Appeals of New York. Feb. 26, 1959. Appeal from Supreme Court, Appellate Division, Second Department, 4 A.D.2d 881, 167 N.Y.S.2d Defendant was charged by indictment with first degree grand larceny by false pretense, and he made a motion for dismissal of th......

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