People v. Curatolo

Appeal from.a judgment of the County Court, Nassau County, convicting appellant of burglary in the third degree and grand larceny in the first degree. Judgment reversed upon the law and the facts and a new trial ordered. In our opinion the trial court failed to charge the jury adequately and correctly. The court’s failure generally to analyze the evidence so as to present to the jury fairly the conflicting claims of the People and the appellant, in all the phases in which the jury ought to consider the case, deprived the appellant of a fair trial and requires reversal in the interests of justice, even though no exception was taken to the charge (cf. People v. Montesanto, 236 N. Y. 396, 407; People v. Odell, 230 N. Y. 481, 488; People v. Fanning, 131 N. Y. 659, 663; People v. Viscio, 241 App. Div. 499, 502-503; Code Grim. Pro., § 527). In particular, the charge should have included a more extended reference to the law requiring corroboration of the testimony of an accomplice and to the proof on that question, which was one of the principal issues in the case. In addition, the charge as given failed to advise the jury that the corroborative proof necessary was such “ as tends to connect the defendant with the commission of the crime” ('Code Grim. Pro., § 399). There was also error in the charge on the subject of the weight to foe given to the testimony of the appellant as an interested witness (cf. People v. Ochs, 3 N Y 2d 54, 57; People v. Viscio, supra, p. 502; People v. Herman, 255 App. Div. 314, 315). Further, the prosecutor should not have elicited proof that the accomplice had pleaded guilty to the charge which was the subject of inquiry (People V. O’Regan, 221 App. Div. 331, 333; People v. Louise, 242 App. Div. 471, 472; People v. Harbor, 258 App. Div. 1082; cf. People v. Edwards, 282 N. Y. 413, 416; People v. Le Vita, 2 A D 2d 691). Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.