Opinion
Argued May 8, 1963
Decided June 6, 1963
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES C. CRANE, J.
Canio Louis Zarrilli for appellant. John M. Braisted, Jr., District Attorney ( Thomas R. Sullivan of counsel), for respondent.
Defendant was convicted of the crimes of burglary, third degree, and petit larceny. He was accused of breaking into a room by way of a window and stealing a suit of clothes. In addition to other proof, the defendant's alleged oral confession was received in evidence against him. However, the trial court, when requested, refused to charge that such confession was not sufficient to warrant a conviction without additional proof that the crime charged had been committed (Code Crim. Pro., § 395). This was error ( People v. Reade, 13 N.Y.2d 42, decided herewith), an error that was magnified because the trial court said he so ruled because there were admissions in the case. This was tantamount to saying that a conviction could be had upon a confession alone, and we think this error requires a new trial.
Upon a new trial the issue of unlawful entry as well as burglary should be presented to the jury.
The judgment should be reversed and a new trial ordered.
Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE, FOSTER and SCILEPPI concur.
Judgment reversed, etc.