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  5. 89 N.Y.2d 843 (1996)
 

PEOPLE v. TOLIVER

89 N.Y.2d 843 (1996)

675 N.E.2d 463

652 N.Y.S.2d 728

The People of the State of New York, Respondent, v. Michael Toliver, Appellant.

Court of Appeals of the State of New York.

Decided November 19, 1996.

Attorney(s) appearing for the Case

Simpson Thacher & Bartlett, New York City (Lawrence M. Young of counsel), Whitney Tymas, Richard Greenberg and E. Joshua Rosenkranz for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur in memorandum.

MEMORANDUM.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant was arrested and charged with sodomy in the second degree (Penal Law § 130.45). The first trial on the indictment resulted in a hung jury. Upon retrial, the jury convicted defendant as charged. Thereafter, defendant was sentenced as a predicate felon to an indeterminate prison term of 2½ years to 5 years...

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