Defendant was convicted of the crime of criminally concealing and withholding stolen and wrongfully acquired property, as a felony, under section 1308 of the Penal Law. He was sentenced as a second felony offender to a term of 5 to 7% years in State prison.
This appeal is from the judgment of conviction, as well as from an order denying a motion to suppress evidence of the stolen jewelry, because it was claimed to have been obtained as a result of an illegal search and seizure.
We have concluded that the motion to suppress was properly denied since the stolen jewelry was seized as an incident to a lawful arrest. Moreover, the proof established beyond a reasonable doubt that defendant was guilty of concealing and withholding stolen property.
However, the conviction of defendant must be reversed because of prejudicial error in the' refusal of the Trial Judge to instruct the jury that they could find the defendant guilty of a misdemeanor if the jury found that the property in question was worth less than $100. Section 1308 of the Penal Law provides that one who receives, conceals or withholds stolen or wrongfully acquired property “Is guilty of a misdemeanor if such property be of the value of not more than one hundred dollars ” and is guilty of a felony if the property “ be of a value of more than one hundred dollars ’ ’.
The value of the property is thus an element of the crime and the burden to establish that element is on the People. During the course of the trial, defendant’s counsel was asked by the court to concede that the value of the jewelry was in excess of $100. That request was refused.
There was evidence in the case strongly indicating that the value of the jewelry was in excess of $100. However, as the court said in People v. Walker (198 N. Y. 329, 335): “ Moreover, as is frequently the case, if a fact essential to the crime, although not expressly admitted, is undisputed and is treated during the trial by all concerned as established, it would not be reversible error for the court to so charge, unless, and the exception is vital, the defendant should ask to have it submitted to the jury, *570and in that event, even in such a case, it would be the duty of the court to submit it accordingly. ’ ’
. In the instant case defendant’s counsel specifically requested the court to charge the jury that the jury might consider finding defendant guilty of a misdemeanor if the jury were to find the property to be worth less than $100. The court refused to do so, stating that in the court’s opinion there was no controversy as to the question of value. This was prejudicial error to which defendant’s counsel duly excepted.
In People v. Walker (supra, p. 334) it was said: “ No matter how conclusive the evidence was in the case before us, and assuming that it was wholly uncontradicted and that the inferences all pointed one way, each of the three fundamental facts was for the jury to pass upon, for if the court could take away one from them it could take away all, and thus direct a verdict, which is never allowed in a crimina] case.” (See, also, People v. Mussenden, 308 N. Y. 558, 562-563; People v. Clemente, 285 App. Div. 258, 264-265, affd. 309 N. Y. 890.)
It is regrettable that the judgment of conviction must be reversed in this case, but the error in refusing to charge the jury as requested is not just a technical one which may be disregarded as not affecting the substantial rights of the defendant. (Code Crim. Pro., § 542.)
The judgment should be reversed on the law, and a new trial ordered.