People v. Kozlow

Crane, J.P.

(dissenting and voting to reverse the judgment of conviction, on the law and the facts, and to dismiss the indictment): During summations in this bench trial, the prosecutor urged the trial court to convict the defendant on a theory that was not charged in the indictment. When the defendant objected and clearly stated the ground for his objection, the court overruled the objection, opaquely adding later that it was bound by the case file and would make a decision based on the evidence. Because the prosecutor’s change in theory violated the defendant’s constitutional right to be…