People v. Richards

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 22, 1977, convicting him of burglary in the second degree, rape in the first degree, sodomy in the first degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The proof in the instant case to a great extent dealt with collateral issues which might well have pointed the jury away from the basic issues concerning the charges preferred against the defendant. Therefore, in the interest of justice, there should be a new trial. If the proof at the new trial consists of the same facts adduced at the instant trial, the charge of sexual abuse in the first degree should be deemed an inclusory concurrent count of rape in the first degree, as is presently conceded by the District Attorney. Suozzi, J. P., Lazer, Shapiro and Cohalan, JJ., concur.