Opinion
December 18, 1956
The jury was instructed appropriately that it might return a verdict of guilty of burglary in the third degree, guilty of petit larceny, or not guilty. However, through its foreman, the jury reported a general verdict of "guilty", without specifying the crime to which the verdict related. Since the ambiguity of the verdict was not resolved at the time of its rendition, this court resolves it in favor of the defendant and deems the jury to have found the defendant guilty of the lesser of the two counts submitted, viz., petit larceny ( People v. Allen, 266 App. Div. 670). Accordingly, judgment convicting defendant of burglary in the third degree and sentencing him to State Prison for a term of not less than three nor more than six years, unanimously modified by convicting defendant of the crime of petit larceny under section 1299 of the Penal Law, and by sentencing him to an indefinite term in the New York City Penitentiary, pursuant to article 7-A of the Correction Law. As so modified the judgment is affirmed. Settle order on notice.
Concur — Botein, J.P., Rabin, Frank, Valente and Bergan, JJ.