Opinion
July 9, 1964
Appeal by defendant from a judgment of the County Court, Nassau County, rendered November 7, 1963 after a jury trial, convicting him of robbery in the first degree, assault in the second degree and of criminally carrying concealed a loaded pistol, and imposing sentence. Judgment reversed on the law and a new trial ordered. The findings of fact implicit in the jury's verdict are affirmed. In our opinion, reversal is required because of the refusal of the trial court to submit the issue of self-defense to the jury (cf. Allison v. United States, 160 U.S. 203, 208-211). It is also our opinion that the court erred in not permitting defendant to testify as to his intent in committing the acts upon which the charges of robbery and assault were based ( People v. Levan, 295 N.Y. 26, 33-34); and in failing to charge that the intent to steal was an essential element of the crime of robbery ( People v. Koerber, 244 N.Y. 147, 153-154; People v. Best, 253 App. Div. 491, 493). We are also of the opinion that some of the prosecutor's remarks during his summation exceeded permissible bounds and constituted error. Beldock, P.J., Kleinfeld, Christ, Brennan and Hill, JJ., concur.