Opinion
February 10, 1958
Appeal (1) from a judgment of the County Court, Queens County, convicting appellant after trial of robbery in the first degree, grand larceny in the first degree, and assault in the second degree, and sentencing him to serve from 15 to 20 years concurrently with a sentence imposed on the same day for another crime, and (2) from said sentence. Judgment reversed on the law and the facts and a new trial ordered. The prosecutor improperly used extrinsic evidence to discredit appellant's denial that he had participated in other crimes, and referred in his summation to matter which the jury could not properly consider in its deliberations. In our opinion this deprived appellant of a fair trial ( People v. Ochs, 3 N.Y.2d 54; People v. McCormick, 303 N.Y. 403; People v. Malkin, 250 N.Y. 185; People v. Lombard, 4 A.D.2d 666). No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction Nolan, P.J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.