Opinion
Argued October 20, 1983
Decided November 23, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MARTIN B. STECHER, J.
Robert M. Morgenthau, District Attorney ( Julie Copeland and Mark Dwyer of counsel), for appellant.
Paula P. Smith and William E. Hellerstein for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, defendant's conviction reinstated, and the case remitted to that court to decide whether it be appropriate to consider the question within the exercise of its discretion and to consider questions of fact. (CPL 470.40, subd 2, par [b]; 470.25, subd 2, par [d].)
Inasmuch as there was no objection at trial to the failure to charge on the presumption of innocence, the Appellate Division's holding, that the omission in the charge necessitated a reversal of the conviction as a matter of law, was error requiring reversal and remittal to that court to permit, if it deems appropriate, the exercise of its discretionary powers to review the alleged error even in the absence of timely objection. ( People v Cona, 49 N.Y.2d 26; cf. People v Thomas, 50 N.Y.2d 467, 472.)
In view of the disposition thus mandated, it would be inappropriate for us to express any opinion as to defendant's contention of error with respect to the failure of the trial court to charge the presumption of innocence where a proper request is not made.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order reversed, conviction reinstated and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.