Opinion
February 10, 1933.
Appeal from County Court of Suffolk County.
Judah W. Katz [ Abraham L. Sainer with him on the brief], for the appellant.
Fred J. Munder, Assistant District Attorney [ Alexander G. Blue, District Attorney, with him on the brief], for the respondent.
We are of opinion that the indictment was sufficiently specific in accusing the defendant of the crime of extortion in violation of section 850 of the Penal Law. The record, however, does not establish the commission of the crime charged, but suffices to prove the defendant guilty of an attempt to commit the crime of extortion. ( People v. Gardner, 144 N.Y. 119.) The district attorney with commendable frankness concedes that the verdict should have been that of an attempt, and not of the crime charged, and he urges us to exercise our power pursuant to section 543 of the Code of Criminal Procedure and reduce the sentence thereunder to that of punishment for an attempt to commit the crime charged. In our opinion, the court is without power to reduce a sentence to meet a crime proved but not found by the jury to have been committed. For the purposes of the new trial which we direct, we have examined the alleged errors in rulings upon the admission of evidence, and conclude that the rulings were not erroneous.
The judgment should be reversed on the law and the facts and a new trial ordered.
YOUNG, KAPPER, HAGARTY, TOMPKINS and DAVIS, JJ., concur.
Judgment of conviction of the County Court of Suffolk county reversed on the law and the facts and a new trial ordered.