People v. Smith

Appeal by defendant: (1) from a judgment of the County Court, Suffolk County, rendered June 27,1960, convicting her, after a jury trial, of perjury in the first degree and sentencing her to pay a fine of $500; and (2) from an order of said court made the same day denying her motion in arrest of judgment. Defendant has paid the fine. Defendant was indicted for perjury in the first degree. The bill of particulars specified that defendant testified falsely before the Grand Jury concerning material matters then pending before it, namely: her charge that police officer O’Keefe had assaulted her, and the charge against her that she had violated the Alcoholic Beverage Control Law by operating her place of business after legal dosing hours. Judgment reversed on the law, fine directed to be remitted and a new trial ordered. The findings of fact in the court below have not been considered. The Trial Judge failed to charge the jury that a conviction for perjury may not rest on the uncorroborated testimony of a single witness. Although on behalf of the defendant there were no exceptions or requests to charge, nevertheless in our opinion, the failure to charge that rule was prejudicial to defendant’s rights and requires a new trial in the interests of justice, particularly since the corroborating evidence as to the assault was of slight probative value and might well have been disregarded" by the trial jurors if they had been instructed as to the proper rule to be applied (People v. Hicks, 11 A D 2d 1076). It is also our opinion that *968the record presently before us fails to disclose either: (3) that the Grand Jury was investigating the alleged after-hours sale of liquor by defendant; or (2) that the question of such after-hours sale was material to the Grand Jury’s investigation of the alleged assault. No separate appeal lies from an order denying a motion in arrest of judgment, which has been reviewed on the appeal from the judgment of conviction. Ughetta, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.