Opinion
November 6, 1975
Appeal from the Onondaga County Court.
Present — Marsh, P.J., Moule, Simons, Mahoney and Del Vecchio, JJ.
Judgment unanimously modified, on the law and facts, by reversing the conviction of possession of a forged instrument second degree and conspiracy third degree and dismissing counts nine and eleven of the indictment and by reversing the convictions of two counts of conspiracy third degree charged in the sixth and seventh counts of the indictment and forgery second degree charged in the eighth count of the indictment and granting a new trial on said counts. Memorandum: As determined in companion appeal of People v Del Popolo ( 50 A.D.2d 710), the evidence fails to sustain proof of requisite intent on the part of the defendant within sections 170.25 Penal and 105.05 Penal of the Penal Law with reference to the $27,000 check transactions encompassed in the ninth and eleventh counts of the indictment. However, in view of the mere sufficiency, as opposed to overwhelming proof adduced to sustain defendant's convictions of the remaining crimes of which he stands convicted, denial of defendant's motion for trial severance of the "noncommon" counts of the joint indictment herein, as required by CPL 200.40, cannot be considered harmless error within the principles of People v Crimmins ( 36 N.Y.2d 230), and thus we reverse the remaining convictions herein and grant a new trial on said counts.