Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Memorandum: Upon the trial an issue of fact was presented as to whether the alleged larceny occurred in the County of Erie or in the County of Wyoming. The trial court properly refused to pass upon this as a question of law but neglected to present the factual issue to the jury. While there was no specific request to charge upon the subject, we believe that the trial court was sufficiently alerted by appellant’s motion so that the question of venue should have been submitted. (Cf. People v. Hetenyi, 277 App. Div. 310, 315, affd. 301 N. Y. 757; see, also, People v. Hetenyi, 304 N. Y. 80, 83, 84.) The trial court properly submitted the question as to whether the witness, Lueke, was an accomplice. The instructions, however, were confusing and the jury was not charged, as they should have been, as to the provision of section 399 of the Code of Criminal Procedure. (Appeal from judgment of Erie County Court convicting defendant of the crime of grand larceny, second degree.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.