Opinion
December 22, 1970
Judgment, Court of General Sessions, New York County, rendered on February 18, 1954, after jury trial, affirmed. Only two assignments of error are deemed worthy of even passing notice, and, if error at all, they are harmless. To begin with, on the totality of the evidence of defendant's mental condition as it was at the time of trial — or even now, viewing it from the vantage point of hindsight — we cannot find that there was sufficient before the trial court to have mandated a hearing sua sponte as to defendant's sanity. Reliance is also placed on a claim of prejudice deriving from an answer elicited on cross-examination from a psychiatrist called by the People; upon being asked what he meant by "reactive depression," the witness stated: "We used the term reactive depression, the emphasis on the reactive, the adjective, when we mean the depression, mental condition is a reaction to a real situation. It is for example, normal, if caught in a severe situation, being a second, third or fourth offender to react depressively. It is only a matter of degree to react" and further, in answer to the court's question: "Of course, Doctor, this last statement you are speaking in a general case. You weren't particularizing about this defendant? Just speaking in general, yes or no, were you giving general reasons when you spoke about severity of being caught in a severe situation? Was that a general observation?" he said: "It is general. I think it applies here too." Accordingly the court was "required * * * to assess the likelihood of prejudice and * * * attempt to limit the prejudicial effect by ordering the matter stricken and instructing the jury to disregard it". ( People v. Rivera, 26 N.Y.2d 304, 307.) This the court did, and did well, instructing the jury carefully, and even, after conviction, taking memoranda and reconsidering mistrial. Unlike Rivera, this unfortunate occurrence took place in the courtroom, and, short of inquiry of each juror, the Presiding Judge knew all that he could have ascertained about the matter upon a hearing. Further, to have made such an inquiry would itself have adverted the jurors' attention to the slim possibility that the doctor had told them that this defendant had a prior record. The error by the witness, not the court, was completely cured by the court's careful rulings and instructions.
With deference to the majority, I must dissent on the precedent of People v. Rivera, 26 N.Y.2d 304 (revg. this court, 32 A.D.2d 770). The same point is involved, to wit, the inadvertent disclosure of a past criminal record. In Rivera, a new trial was deemed warranted even though it was unclear the intelligence ever came to the jury's notice. Here, there is no doubt from the record that the knowledge was brought home to the jury. A fortiori, the judgment herein must be reversed and a new trial ordered as in Rivera. The fact "honest error" was committed does not derogate from the rudimentary and serious quality of the error, requiring a new trial. (See, also, People v. Wiggins, 30 App. Div. 948, 949.) Moreover, I am troubled by grave doubts as to this defendant's sanity at the time of trial. (See People v. Frampton, 31 A.D.2d 551.)