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People v. Lewis

64 N.Y.2d 1031 Court N.Y. Decision date 1985-04-04 English

Contents

Majority

p. 1031
The People of the State of New York, Respondent, v Kenneth Lewis, Appellant.
Argued March 26, 1985;
decided April 4, 1985
p. 1032
APPEARANCES OF COUNSEL
Kenneth Rabb, Michael J. Obus and Matthew Muraskin for appellant.
Denis Dillon, District Attorney (Peter R. Shapiro and Anthony J. Girese of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and a new trial ordered.

The trial court, in its instructions, improperly removed from the jury’s consideration all of the elements of the crimes charged except for that of identification. This error, preserved for our review by defense counsel’s timely objection, his request for curative instructions and a motion made for a mistrial, deprived defendant of a fair trial, for “[n]o matter how conclusive the evidence * * * each of the * * * fundamental facts was for the jury to pass upon” (People v Walker, 198 NY 329 ,334; see also, People v Steele, 26 NY2d 526 , 529). Although the admission by a defendant or his counsel of the existence of any of the elements of the crimes with which he was charged may have excused a court’s removal of these elements from the jury’s consideration (see, People v Walker, supra, p 335 ; People v Brady, 16 NY2d 186 , 189-190) there was no such admission during the trial of this case.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.

Order reversed, etc.

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