Opinion
November 13, 1935.
Appeal from County Court of Monroe County.
Chamberlain, Page Chamberlain [ Arthur V D. Chamberlain of counsel], for the appellant.
Daniel J. O'Mara, District Attorney [ Harry L. Rosenthal, Assistant District Attorney, of counsel], for the respondent.
Present — SEARS, P.J., TAYLOR, EDGCOMB, CROSBY and LEWIS, JJ.
In affirming this judgment we are not overlooking the fact that the trial court erred in refusing to charge that evidence of good character may in and of itself create a reasonable doubt. ( People v. Bonier, 179 N.Y. 315; People v. Conrow, 200 id. 356; People v. D'Anna, 243 App. Div. 259.) We think, however, that the instant case is clearly distinguishable from the cases laying down the above rule. The evidence of good character is not particularly satisfactory. Defendant's guilt does not depend upon circumstantial evidence. He was positively identified by two witnesses as the perpetrator of the crime charged. Their identification was not shaken or weakened in any particular. Defendant had a fair and impartial trial; his rights were properly safeguarded; no fault can be found with the charge except in the particular mentioned. The evidence fully justifies the verdict. The guilt of the defendant is so clear that it is difficult to conceive how the verdict could have been influenced by the refusal of the court to charge as requested. That being so, we feel constrained, in the interest of justice, to follow the mandate of section 542 of the Code of Criminal Procedure and disregard the error mentioned. This provision goes far beyond mere technical errors, and commands the court to affirm a judgment of conviction unless the substantial rights of the accused have been infringed, which is not the case here.
All concur, except SEARS, P.J., who dissents and votes for reversal on the law on the authority of People v. Bonier ( 179 N.Y. 315); People v. Conrow (200 id. 356); People v. Weiss ( 129 App. Div. 671); People v. Koppman (158 id. 660), and People v. Console (194 id. 825).
Judgment of conviction affirmed.