(DOWNLOAD) "People State New York v. Vito Pastore" by Supreme Court of New York ~ Book PDF Kindle ePub Free
eBook details
- Title: People State New York v. Vito Pastore
- Author : Supreme Court of New York
- Release Date : January 09, 1974
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
After trial of a seven count indictment charging defendant with crimes arising out of the sale and use of two airline tickets which had previously been stolen and forged, not guilty verdicts were returned on Counts Nos. 1, 2, 3, 4, 5 and 7. Defendant was found guilty under Count No. 6 charging theft of services. Counts Nos. 6 and 7, as delineated in the indictment, are identical and before deliberating, the trial court, upon its inquiry, was informed by the prosecutor that Count No. 6 relates to one ticket and Count No. 7 relates to the other. It is patent that the two tickets were bought and used together in one transaction. Under these circumstances, acquittal on Count No. 7 and the finding of guilt under Count No. 6 resulted in the archetypal repugnant verdict. A finding of guilt under Count No. 6 conjoined to a finding of innocence under Count No. 7 "is truly repugnant, as opposed to being merely inconsistent" (People v. Bullis, 30 A.D.2d 470, 472; see, also, People v. Pierce, 40 A.D.2d 581). The trial court, alerted to this defect as a consequence of defendants post-trial motion to set aside the verdict as repugnant, sua sponte altered its earlier not guilty verdict by dismissing Count No. 7 nunc pro tunc as of the date of defendants motion to dismiss the indictment at the close of trial. CPL 330.30 states, in pertinent part: "At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof" (emphasis supplied). Altering a verdict of acquittal, whether it be that of a jury or of the court, is a revocation of a finding of innocence and, as such, is not a mere "ministerial act". The acute distinction between acquittal of a charge and dismissal of that charge renders the trial courts attempted remedy of the defect herein constitutionally aberrant. On this record, the People may not contend that Count No. 7 is mere surplusage as they specifically submitted same as a separate and distinct crime.