Opinion
July 12, 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 29, 1974, convicting him of robbery in the first degree (two counts), robbery in the second degree (two counts), grand larceny in the third degree (three counts) and criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions for grand larceny in the third degree (three counts) and criminal possession of stolen property, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed (see People v Grier, 37 N.Y.2d 847, 848; People v Hayes, 43 A.D.2d 99, affd 35 N.Y.2d 907). The facts upon which the judgment of conviction is based have been considered and determined to have been established. Hopkins, Acting P.J., Rabin, Shapiro and Titone, JJ., concur; Martuscello, J., dissents and votes to reverse the judgment and order a new trial, with the following memorandum: Although there was strong evidence of defendant's guilt, he was deprived of a fair trial by the improper and intemperate conduct of the Trial Judge, who unduly injected himself into the proceedings by characterizing testimony and making gratuitous remarks and observations which tended to aid the prosecution in the eyes of the jury (cf. People v Matos, 46 A.D.2d 903; People v Baker, 44 A.D.2d 83).