Opinion
November 6, 1961
Appeal by defendant: (a) from a judgment of the County Court, Kings County, rendered October 28, 1959, after a jury trial, convicting him of manslaughter in the first degree, and sentencing him as a second felony offender to serve a term of 15 to 25 years; and (b) from every intermediate order made in the action. Judgment reversed on the law and the facts and the indictment dismissed. The deceased died as a result of stab wounds. Concededly none of the wounds was inflicted by defendant. His conviction purports to rest upon the allegations of "acting in concert" and "aiding and abetting." There is no evidence that he aided or abetted or acted in concert in respect of the stabbings. The weight of the evidence, which is substantially uncontradicted, permits findings that defendant interceded first to stop a fist fight, and second to prevent attacks with a knife. There is no evidence whatever of a pre-existing conspiracy between defendant and the assailants. Under the circumstances the judgment of conviction must be reversed and the indictment should be dismissed (cf. People v. Agron, 10 N.Y.2d 130). No separate appeal lies from the intermediate orders, which have been reviewed on the appeal from the judgment of conviction. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.