People v. Stone

• Decision Date: 01 November 1976
• Citation: 387 N.Y.S.2d 915,54 A.D.2d 918
• Parties: The PEOPLE, etc., Respondent, v. Cornelius STONE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 915

387 N.Y.S.2d 915

54 A.D.2d 918

The PEOPLE, etc., Respondent, v. Cornelius STONE, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 1, 1976.

John J. Meglio, New York City, for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Peter A. Norling, Brooklyn, of counsel), for respondent.

Before LATHAM, Acting P.J., and COHALAN, DAMIANI, SHAPIRO and TITONE, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendant from two judgments of the Supreme Court, Kings County, both rendered March 12, 1975, (1) the first convicting him of criminal possession of stolen property in the second degree, after a nonjury trial, and imposing sentence (indictment No. 5174/73), and (2) the second convicting him of attempted burglary in the third degree, upon a plea of guilty, and imposing sentence (indictment No. 2613/74).

Judgment rendered upon the conviction of criminal possession of stolen property in the second degree (indictment No. 5174/73) affirmed.

Judgment rendered upon the conviction of attempted burglary in the third degree (indictment No. 2613/74) reversed, on the law and as a matter of discretion in the interest of justice, plea vacated, and case remitted to Criminal Term for further proceedings consistent herewith.

The conviction of criminal possession of stolen property is supported by proof beyond a reasonable doubt (see People v. Reisman, 29 N.Y.2d 278, 327 N.Y.S.2d 342, 277 N.E.2d 396, cert. den., 405 U.S. 1041, 92 S.Ct. 1315, 31 L.Ed.2d 582; People v. Colon, 28 N.Y.2d 1, 318 N.Y.S.2d 929, 267 N.E.2d 577, cert. den., 402 U.S. 905, 91 S.Ct. 1379, 28 L.Ed.2d 646; People v. Peters, 43 A.D.2d 599, 348 N.Y.S.2d 786).

When defendant appeared for sentencing on his conviction of criminal possession of stolen property in the second degree, he offered to withdraw his plea of not guilty under indictment No. 2613/74, which charged him with burglary in the third degree, petit larceny and criminal possession of stolen property in the third degree, and to plead guilty to Attempted burglary in the third degree in satisfaction thereof. After a brief catechism, in which defendant was advised of his rights to a jury trial, etc., the court inquired as to whether defendant desired to waive those rights and plead guilty to attempted burglary in the third degree. Defendant answered in the affirmative, whereupon the following colloquy ensued:

'THE COURT: Tell me what happened on the day in question?

'DEFENDANT STONE: When this incident occurred on May 16, 1974, we tried to remove a refrigerator in front of the project and put it in a cab.

'THE COURT: You knew the refrigerator was from the project?

'DEFENDANT STONE: I don't know where it was from.

'THE COURT: The refrigerator was outside the door and they were putting it into a cab?

'MR. FAHN (Assistant District Attorney): It belonged to the project.

'THE COURT: Did you have any permission from anybody to take it?

'DEFENDANT STONE: No, I don't.'

Without further inquiry, the court accepted the plea and imposed sentence.

The facts stated, of course, make out a larceny, at best. The court erred in accepting the plea under those circumstances. It is well established that:

'where, as is the usual case today, the trial court,...