People v. Hentschel

Appeal from a judgment of the County Court of Broome County, rendered April 1, 1976, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the fifth degree and criminal possession of a controlled substance in the fifth degree. As a result of alleged incidents which occurred at various locations in Broome County on November 13, 1974, wherein the sale of 96 pounds of marihuana was arranged and consummated, defendant was indicted for the crimes of criminal sale of a controlled substance in the fifth, degree and criminal possession of a controlled substance in the fifth degree, both class C felonies. Following a jury trial, he was convicted on both counts and sentenced to a term of probation for five years. This appeal ensued. Seeking a reversal of his conviction, defendant initially contends that the Trial Judge wrongfully instructed the jury as to the law of conspiracy. Wé agree. Although defendant was neither indicted nor tried for conspiracy (see Penal Law, art 105), the court in its charge explained the crime of conspiracy in great detail. 944 Since the crimes for which defendant had been indicted were alleged to have been committed by defendant acting in concert with others, this information relating to conspiracy was apparently included in the charge by the court in an attempt to explain the distinct and independent concept of criminal liability for aiding and abetting the criminal conduct of another (see Penal Law, § 20.00). Nonetheless, in our judgment the impartation of this information to the jury could have served only to confuse that body’s subsequent deliberations and might well have caused the ultimate guilty verdict upon the jury’s finding that defendant was guilty as a conspirator in planning the subject illegal transaction even though he was not guilty of any other criminal conduct. Such being the case, the court’s charge was prejudicial to defendant, and a new trial must be had (cf. People v Valerio, 64 AD2d 516; see, also, People v Duncan, 46 NY2d 74, cert den 442 US 910). In so ruling, we find without merit two of defendant’s other contentions which he maintains require dismissal of the indictment herein. The question of the sufficiency of the evidence corroborating the accomplice testimony presented was properly left for the jury to determine (People v Brown, 30 AD2d 279), and the existence of the marihuana was adequately established by a chemist’s testimony where the drug itself had been inadvertently destroyed (People v Reed, 53 AD2d 786, affd 44 NY2d 799). We need reach no other issue. Judgment reversed, on the law, and a new trial ordered. Main, Mikoll and Yesawich, Jr., JJ., concur.