Opinion
November 7, 1974
Judgment, Supreme Court, Bronx County, rendered on December 20, 1972, convicting defendant, upon a jury verdict, of robbery in the first degree, grand larceny in the third degree, assault in the second degree and possession of a weapon as a misdemeanor, and sentencing defendant to indeterminate concurrent terms of imprisonment of from 7 to 21 years on the robbery conviction, one year each for both the grand larceny and assault convictions and to an unconditional discharge on the possession count, unanimously reversed and vacated, on the law, and the matter remanded to the Supreme Court for a new trial. At the close of a combined Wade and suppression hearing, assigned defense counsel for this indigent defendant made application for a free transcript of the proceeding, which request was denied. This application, having been made prior to the Court of Appeals holding in People v. Sanders ( 31 N.Y.2d 463), is governed by the rationale enunciated in People v. Zabrocky ( 26 N.Y.2d 530) and thus, the application having been erroneously denied, defendant is entitled to a new trial. Further, gratuitously charging the jury that certain uncharged crimes, to wit, rape and sodomy, were felonies as a matter of law, was improper and warrants, on this record, reversal and a new trial.
Concur — McGivern, P.J., Markewich, Lupiano, Tilzer and Yesawich, JJ.