Opinion
December 15, 1975
Appeal by defendants from three judgments (one as to each defendant) of the Supreme Court, Kings County, rendered January 10, 1975, convicting them of criminal impersonation, and, additionally, convicting defendants Alexander Ponsiglione and Nicholas Maisto of official misconduct, upon a jury verdict, and imposing sentence. Judgments against defendants Alexander Ponsiglione and Nicholas Maisto reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. No fact questions were raised or considered on this appeal. Judgment against defendant Anthony Ponsiglione affirmed. The trial court erred in receiving evidence, over the objection of counsel for defendants Alexander Ponsiglione and Nicholas Maisto, concerning collateral criminal acts committed solely by defendant Anthony Ponsiglione. While this evidence was properly received against the latter defendant because it tended to identify him as the person who committed the crimes charged (see People v Molineux, 168 N.Y. 264; People v Hill, 198 N.Y. 64), the trial court erroneously received the evidence against all three defendants. The jury was instructed to consider such evidence in determining guilt despite the fact that there was no proof that defendants Alexander Ponsiglione or Nicholas Maisto were in any way involved in the collateral criminal acts. The judgments of conviction against these two defendants must therefore be reversed and a new trial ordered. Cohalan, Brennan, Munder and Shapiro, JJ., concur; Martuscello, Acting P.J., not voting.