People v. Wieczorek , 16 A.D.2d 1025 ( 1962 )

Judgment of conviction unanimously reversed on tlic law and facts and in the interests of justice atnl a new trial granted. Memorandum: The judgment of conviction depends in large part upon certain articles of personal property received in evidence, some of which were obtained from the defendant’s home prior to arrest and some of which were taken from the defendant’s wife’s car after the arrest, all without a search warrant. It is claimed by the People that these exhibits were seized as incidents to a lawful arrest without a warrant of arrest. The record does not support this claim. Just when the defendant was arrested is uncertain, but it is definite that at least one of these articles was seized before the arrest and that the arrest was made as the result of the search and not prior thereto. This was a violation of defendant’s constitutional rights (People v. Moore, 11 N Y 2d 271). As to the articles taken from defendant’s wife’s car, it is clear that they were seen by the officers during the unlawful search of defendant’s home. Later, when the officers received knowledge that they may have been connected with one of the crimes charged, they were taken from the car. None of these articles was properly admitted in evidence (People v. Rodriguez, 11 N Y 2d 279). The elements of the crime of burglary, particularly the element of intent, were not well defined in the court’s charge (People v. Katz, 290 N. Y. 361); and in relation to the People’s claim of larceny the court, in effect, charged that if it was found that either the defendant-appellant or the codefendant entered the premises in question the jury would have to find the defendant guilty of larceny, leaving only the degree of larceny in doubt. There were other errors. Because of the effect of the sum total of all of this, the judgment should be reversed and a new trial granted in the interests of justice. It may be that the defendant will be advised to attack the search and seizure on preliminary proceedings under the newly enacted sections 813-e, 813-d, 813-e of the Code of Criminal Procedure. (Appeal from judgment of Niagara County Court convicting defendant of burglary, third degree, grand larceny, second degree and petit larceny.) Present•—Williams, P. J., Bastow, Goldman and Henry, JJ.