Opinion
June 24, 1974
Appeal by defendant from a judgment of the County Court, Nassau County, rendered December 5, 1972, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant, along with a codefendant (Clarke), was convicted of robbery in the first degree. They had been charged with aiding and abetting one Edward Gladman, the actual perpetrator of the robbery. As we noted in our decision on the codefendant's appeal ( People v. Clarke, 43 A.D.2d 834), the evidence presented at the trial could have supported a finding of guilt of the lesser included crime of criminal facilitation in the second degree (Penal Law, § 115.00). Under the circumstances, the trial court's failure to charge the jury on criminal facilitation in the second degree, despite defendant's request for such a charge, requires reversal and a new trial. Martuscello, Acting P.J., Latham, Shapiro, Cohalan and Brennan, JJ., concur.