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People v Levinton (Mitchell)
2009 NY Slip Op 50496(U) [22 Misc 3d 143(A)]
Decided on March 18, 2009
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 18, 2009
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2007-90 K CR.

The People of the State of New York, Respondent,

against

Mitchell Levinton, Appellant.


Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Alvin M. Yearwood, J.), rendered November 29, 2006. The judgment convicted defendant, upon a jury verdict, of endangering the welfare of a child.


Judgment of conviction reversed, on the law, and accusatory instrument dismissed.

Defendant was improperly convicted of endangering the welfare of a child (Penal Law § 260.10) based on a theory not set forth in the accusatory instrument (see People v Roberts, 72 NY2d 489, 498 [1988]; People v Harper, 37 NY2d 96, 99-100 [1975]; People v Rubin, 101 AD2d 71, 77 [1984]), as conceded by the People on this appeal.

Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.

We pass on no other issue. Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: March 18, 2009