Opinion
March 28, 1960
Appeal (1) from a judgment rendered by the County Court, Queens County, sentencing appellant, after he had been found guilty, by a jury, of burglary in the second degree and grand larceny in the first degree, to serve from 5 to 15 years, and (2) from every intermediate order therein made. Judgment reversed upon the law and the facts, and a new trial ordered. In our opinion, appellant did not have a fair trial. The prosecutor's repeated and continuing references to the testimony given before the Grand Jury by the witness Manuel Quinones, husband of appellant's codefendant, although it was apparent that he would not answer the questions put to him, was prejudicial conduct which affected appellant's substantial rights. The prejudice was not cured by the court's instructions to the jury. ( People v. Jackson, 7 N.Y.2d 142, revg. 8 A.D.2d 613; People v. Carborano, 301 N.Y. 39, 42; People v. Robinson, 273 N.Y. 438, 445.) No separate appeal lies from the intermediate orders, which have been reviewed upon the appeal from the judgment. Nolan, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.