Opinion
Argued March 20, 1961
Decided April 20, 1961
Appeal from the County Court of Kings County, SAMUEL S. LEIBOWITZ, J.
Harold A. Meriam, Jr., and Samuel Goldstein for appellant.
Edward S. Silver, District Attorney ( William I. Siegel of counsel), for respondent.
Judgment of conviction affirmed; no opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS, BURKE and FOSTER. Judge FROESSEL dissents and votes to reverse on the ground that, upon this record and in light of defendant's written statement, the trial court's failure to charge the jury that it might find that the underlying felony had been abandoned was prejudicial error ( People v. Walsh, 262 N.Y. 140; People v. Smith, 232 N.Y. 239; People v. Brown, 5 A.D.2d 819; see, also, People v. Koerber, 244 N.Y. 147, 154; People v. Van Zandt, 224 N.Y. 354); accordingly, a new trial should be ordered.