Opinion
July 11, 1961
(Consolidated Appeals.) Appeals by defendant: (1) from a judgment of the County Court, Queens County, rendered February 24, 1960, convicting him, after a jury trial, of two counts of forgery in the third degree (Penal Law, § 889-b), in that he falsely made, altered, forged and counterfeited, two doctors' prescriptions, and sentencing him to serve a term of 2 1/2 to 5 years on each count, such sentences to be served consecutively; (2) from an order of said court, dated December 14, 1960, denying, without a hearing, his coram nobis application to vacate said judgment; and (3) from so much of an order of said court, dated January 16, 1961, as on reargument adhered to the court's original decision denying his coram nobis application. Judgment reversed on the law and the facts, and a new trial ordered. In our opinion, it was prejudicial error to allow the jury to consider a plea of guilty which had been withdrawn by permission of the court, and to permit the prosecutor on the People's case in chief to use such plea as proof of the defendant's guilt ( People v. Spitaleri, 9 N.Y.2d 168). The prosecutor's repeated references to such prior plea of guilt in his opening and in his summation, and the learned Trial Judge's reference to it in his charge to the jury, even though defense counsel raised no objection or exception to such reference by the Trial Judge, served to deprive defendant of a fair trial ( People v. Rehm, 13 A.D.2d 844). Appeal from orders, dated December 14, 1960 and January 16, 1961, dismissed as academic. Ughetta, Kleinfeld, Pette and Brennan, JJ., concur; Nolan, P.J., concurs in the dismissal of the appeal from the orders, but dissents from the reversal of the judgment and the granting of a new trial, and votes to affirm the judgment.