People v. Ochs , 9 A.D.2d 792 ( 1959 )

Appeal from a judgment of the County Court, Nassau County, rendered June 14, 1957, sentencing appellant, after he had been found guilty by a jury of burglary in the third degree and grand larceny in the second degree, to serve concurrent sentences of from 7 to 10 years on each count. Judgment reversed on the law and the facts, and a new trial ordered. The failure of the Trial Judge, though apparently inadvertent, to comply with the jury’s request, made during their deliberations, that he define what constituted reasonable doubt, was prejudicial to appellant’s substantial rights and requires reversal. (People v. Miller, 6 N Y 2d 152.) Since there is to be a new trial, we consider it advisable to state that in our opinion it was also error to receive in evidence certain burning equipment found in a car which appellant “ was using ” at some unspecified time, which equipment was not identified as having been used in the commission of the crimes charged against appellant, and to receive in evidence a photograph from the police files, attached to a statement signed by a witness, one Miller. (See People v. Infantino, 224 App. Div. 193, 195, 196; People v. Lupo, 280 App. Div. 836, affd. 305 N. Y. 762; People v. Hagedorny, 272 App. Div. 830.) Nolan, P. J., Hallinan and Kleinfeld, JJ., concur; Murphy, J., deceased. Beldock, J., dissents and votes to affirm, with the following memorandum: In my opinion, there was no serious prejudice to appellant’s rights by the failure to recharge as to reasonable doubt, in view of appellant’s clear guilt and the fact that the jury said they did not want anything further. I agree that there was error in the admission of the burning equipment, but would affirm under section 542 of the Code of Criminal Procedure.