
    The People of the State of New York, Respondent, v. David Sinkler, Appellant.
   Appeal from a judgment of conviction rendered by the County Court of Kings County, November 12, 1958 sentencing appellant, after he had been found guilty by the court of robbery in the first degree, to serve from 10 to 20 years. Judgment reversed on the law and the facts, and a new trial ordered. Appellant signed a written waiver of trial by jury. Prior to the trial and prior to this waiver there was an informal discussion at the bench between the trial court, appellant, and his assigned counsel with reference to a possible plea so as to avoid a trial. During this preliminary discussion appellant made certain statements and admissions to the court. No understanding having been reached with reference to a plea, the court proceeded to try the case without a jury. The court found appellant guilty and imposed the sentence above mentioned. It frankly placed on the record its reasons for its finding and sentence. It stated to the appellant: The Court states now for the record that normally the sentence would be a two and a half to five year sentence, but in view of the fact that this defendant repeatedly lied to me, and lied in the course of this trial, the sentence will be 10 to 20 years in Sing Sing Prison. You are getting the sentence for lying, mister, not for the crime itself. When you stepped up here the last time, if you admitted your guilt, you would have gotten two and a half to five years. That would have been all right with me. But because you lied to me at that time and because you stepped on the stand and lied here, it is going to be 10 to 20 years.” On this appeal appellant contends that he was not accorded a fair trial in that the court considered not only the evidence adduced during the trial, but also the statements and admissions made by appellant during the preliminary, informal discussion before the trial. More specifically, appellant’s brief states: “apparently his testimony at the trial varied from statements made to the Judge before the trial. * * a The Court below, having heard statements of defendant prior to trial, could not fairly sit in judgment and rule on the case, particularly since he felt that the defendant had lied to him before the trial.” While we do not agree with all of appellant’s contentions, it is our opinion, in view of the above-quoted statements of the trial court, that a new trial should be afforded to appellant in the interests of justice. Beldoek, Murphy and Kleinfeld, JJ., concur; Nolan, P. J., and Hallinan, J., dissent and vote to affirm.  