People v. Smith

Appeal by defendant from a judgment of the former County Court, Kings County, rendered October 27, 1961 after a jury trial, convicting him of assault in the second degree, assault in the third degree, and carrying a dangerous weapon as a felony, and imposing sentence. Judgment reversed on the law and a new trial granted. The findings of fact implicit in the jury’s verdict are affirmed. The indictment charged the carrying of a dangerous weapon as a felony because defendant had a previous criminal record. In the absence of such record, this crime would have constituted a misdemeanor under the statute then in effect (Penal Law, § 1897, subd. 1). The prior record was pleaded in the indictment; at that time such pleading was proper. The day after the indictment was filed, however, an amendment to section 275-b of the Code of Criminal Procedure became effective. That amendment not only barred such pleading, but also barred any mention of a previous criminal record in the presence of the jury. It is not disputed that, at the trial which occurred several months later, the previous criminal record was mentioned in the opening; the People submitted certified proof of the record as part of the People’s case; and the trial court mentioned the previous criminal record three times in the charge to the jury. At no time in the course of the trial did defendant note any objection or exception in protection of his *580rights - under the statutory amendment. Section 275-b of the Code of Criminal Procedure, as amended in 1961, must be observed in all cases tried after its effective date, whether or not the indictments were returned prior to the effective date (People v. Konono, 9 N Y 2d 924; People v. Blume, 12 N Y 2d 705; People v. Grande, 19 A D 2d 655). Under the circumstances, it is our opinion that the verdict is against the law and that the defendant is entitled to a new trial, even though during the trial he had failed to note any objection or exception with regard to the violation of the statute (Code Grim. Pro., § 527). Beldock, P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.