Opinion
June 26, 1967
Judgment of the Supreme Court, Queens County, dated December 3, 1965, which convicted defendant of burglary in the third degree and grand larceny in the second degree, upon a jury verdict, reversed, on the law, and new trial ordered. Appeal from all intermediate orders, as limited in appellant's brief to an order of said court dated May 24, 1965, which denied defendant's motion to suppress evidence, dismissed as academic. With respect to the grand larceny count, it was incumbent upon the prosecution to adduce competent proof of value. The complainant gave a vague description of the property alleged to have been stolen and testified, over objection, as to the value thereof, except with respect to a set of earrings which cost $10.98, and as to the years in which the property was purchased. The competent evidence adduced was insufficient to show market value in excess of $100 (cf. People v. Liquori, 24 A.D.2d 456). The prosecutor's repeated questions with respect to the details of the offense leading to a prior conviction was designed, as appears from his summation, to show a propensity of defendant to commit the larceny charged in the indictment. This attempt and the use of extrinsic evidence (a driver's license) as to a denied collateral matter was prejudicial error ( People v. Kress, 284 N.Y. 452, 466; People v. McCormick, 303 N.Y. 403; People v. Duncan, 13 N.Y.2d 37), as were: (1) the statement, without factual basis, that defendant had stolen money from a Mrs. Jones and (2) the statement that, as a quasi-judicial officer, the prosecutor could assure the jury that a possible but absent witness could not have thrown light on the case. It was charged in the indictment that defendant had committed burglary between March 20, 1965 [as amd.] and April 6, 1965. Although the proof warranted conviction of burglary only on the latter date, the court failed so to charge, and it is impossible to determine whether or not the jury's verdict was based on a finding of guilt of burglary on March 20, 1965. Beldock, P.J., Christ, Rabin, Benjamin and Nolan, JJ., concur.