Opinion
June 10, 1932.
Appeal from Court of General Sessions of the County of New York.
Robert S. Johnstone of counsel [ Stanley L. Richter and Jacob A. Segal with him on the brief; Jacob A. Segal, attorney], for the appellant.
Felix C. Benvenga, Assistant District Attorney, of counsel [ Leroy Mandle, Deputy Assistant District Attorney, with him on the brief; Thomas C.T. Crain, District Attorney,] for the respondent.
Present — FINCH, P.J., MERRELL, MARTIN, O'MALLEY and TOWNLEY, JJ.
This record presents serious errors in the receipt of evidence of appellant's failure to deny the accusations of the defendant Blumenthal made in his presence while under arrest. (See People v. Smith, 172 N.Y. 210, 234; People v. Marendi, 213 id. 600, 613; People v. Infantino, 224 App. Div. 193, 197; People v. Sanacory, 234 id. 628.) The competent evidence in the record, however, clearly establishes defendant's guilt. Defendant confessed to a substantial participation in the crime. While this confession is not as broad as the admissions improperly received in evidence, it is sufficient to establish the essential elements of the crime charged as defined in the Penal Law, section 1250, subdivision 1 (as amd. by Laws of 1911, chap. 625). We are of the opinion, in view of the clearly-established guilt of the defendant, that the errors complained of must be disregarded under section 542 of the Code of Criminal Procedure, and the judgment of conviction affirmed.
Judgment affirmed.