
    The People of the State of New York, Respondent, v. Stephen Cender, Appellant.
    Argued May 8, 1963;
    decided June 6, 1963.
    
      Canio Louis Zarrilli for appellant.
    I. It was error for the court to refuse to charge that there could be no conviction ,on a confession standing alone without additional proof required by section 395 of the Code of Criminal Procedure. (People v. Cuozzo, 292 N. Y. 85; People v. Fitzgerald, 288 N. Y. 58; People v. Byrd, 13 A D 2d 536; People v. Cassese, 281 App. Div. 890.) II. It was error for the court to refuse to charge on the law of unlawful entry. (People v. Miller, 143 App. Div. 251, 202 N. Y. 618; People v. Lapolte, 253 N. Y. 573; People v. Kent, 
      10 A D 2d 662; People v. Masselli, 10 A D 2d 45; People v. Martens, 272 App. Div. 1022; People v. Hassan, 196 App. Div. 89; People v. Mussenden, 308 N. Y. 558.) III. It was error for the court to refuse defendant’s request to withdraw a juror and for a mistrial on the highly prejudicial and inflammatory remarks of the prosecution in summation. (People v. Steinhart, 9 N Y 2d 267; People v. Carborano, 301 N. Y. 39; People v. Tassiello, 300 N. Y. 425; People v. Mleczko, 298 N. Y. 153; People v. Le Van, 295 N. Y. 26; People v. Nuzzo, 294 N. Y. 227; People v. Posner, 273 N. Y. 184; People v. Robinson, 273 N. Y. 438; People v. Malkin, 250 N. Y. 185; People v. Conrow, 200 N. Y. 356; People v. Wolf, 183 N. Y. 464; People v. Davey, 179 N. Y. 345; People v. Fielding, 158 N. Y. 542.) IV. It was error to refuse to dismiss the indictment on the ground that the People had failed to make out a prima facie case, to dismiss on the People’s opening, to fail to direct a verdict in favor of defendant, and to refuse to dismiss the indictment and set aside the verdict on the ground the same was contrary to law and the weight of the evidence. (People v. Cory, 124 Misc. 532; People v. Broderick, 146 Misc. 566; People v. Johnson, 87 Misc. 89; People v. Di Vito, 281 App. Div. 757.)
    
      John M. Braisted, Jr., District Attorney (Thomas R. Sullivan of counsel), for respondent.
    I. There was sufficient evidence of the corpus delicti to satisfy section 395 of the Code of Criminal Procedure; (People v. Taleisnik, 225 N. Y. 489; People v. Brasch, 193 N. Y. 46; People v. Jaehne, 103 N. Y. 182; People v. Beckwith, 108 N. Y. 67; People v. Cuozzo, 292 N. Y. 85.) II. There was no basis for the submission of a charge of unlawful entry to the jury. (People v. Mussenden, 308 N. Y. 558; People v. Ciavarelli, 11 A D 2d 741.) III. The prosecutor’s summation did not constitute reversible error.
   Per Curiam.

Defendant was convicted of the crimes of burglary, third degree, and petit larceny. He was accused of breaking into a room by way of a window and stealing a suit of clothes. In addition to other proof, the defendant’s alleged oral confession was received in evidence against him. However, the trial court, when requested, refused to charge that such confession was not sufficient to warrant a conviction without additional proof that the crime charged had been committed (Code Grim. Pro., § 395). This was error (People v. Reade, 13 N Y 2d 42, decided herewith), an error that was magnified because the trial court said he so ruled because there were admissions in the case. This was tantamount to saying that a conviction could be had upon a confession alone, and we think this error requires a new trial.

Upon a new trial the issue of unlawful entry as well as burglary should be presented to the jury.

The judgment should be reversed and a new trial ordered.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke, Foster and Scileppi concur.

Judgment reversed, etc.  