42 A.D.2d 575 | N.Y. App. Div. | 1973
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 13, 1972, convicting him of murder, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered, with separate memoranda by Hopkins, Acting P. J., in which Benjamin, J., concurs, and by Munder, J., in which Martuscello and Latham, JJ., concur. The facts upon which the judgment was based were considered and determined to have been established. Hopkins, Acting P. J.: Defendant, 16 years old at the time of the incident in question, was indicted for common-law murder and felony murder. He was convicted of felony murder. The theory of the prosecution was that he had acted as a lookout while another boy was robbed and killed by accomplices. At a pretrial hearing a