Opinion
November 8, 1943.
Judgment of the County Court, Queens County, convicting appellant of the crimes of robbery in the first degree, grand larceny in the second degree, and assault in the second degree, reversed on the law and a new trial ordered. A statement made by a codefendant, confessing participation in the crimes charged in the indictment and implicating the appellant, was admitted in evidence. The trial court properly instructed the jury that the statement was binding exclusively upon the one who made it. However, the court also charged the rule that a conviction may not be had upon the testimony of an accomplice unless it be corroborated by other evidence tending to connect the defendant with the commission of the crime. (Code Crim. Pro. § 399.) While the charge was correct as an abstract proposition, it had no application to the instant case, as there was no testimony of any accomplice in the record. The unsworn statement was not such testimony. ( People v. Hassan, 196 App. Div. 89.) Furthermore, the court erroneously refused to charge that the defendants could be convicted or acquitted of one or more of the crimes charged in the indictment. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.