Opinion
February 17, 1966
Appeal from the Oswego County Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously affirmed. Memorandum: It was error for the prosecutor to elicit from the codefendant upon direct examination that he had plead guilty to a count of the indictment upon which appellant was being tried. ( People v. Edwards, 282 N.Y. 413; People v. Louise, 242 App. Div. 471.) It further should not have been mentioned in the opening statement of the prosecutor. These errors, however, do not mandate reversal as before either had taken place counsel for defendant had requested the court to take judicial notice that the codefendant had "plead guilty prior to this trial." We see no error in the recital by the trooper of his conversation with the complainant at the hospital in the presence of the defendant which in substance constituted proof that complainant on a prior occasion had identified appellant. While generally such proof is inadmissible ( People v. Trowbridge, 305 N.Y. 471, 477) it here "came into the case naturally and incidentally to the showing of the general facts and so was admissible." ( People v. Cohen, 5 N.Y.2d 282, 289.) Lastly, we see no need for a further hearing as to the voluntariness of the pretrial written statement made by appellant. The trial herein took place after Jackson v. Denno ( 378 U.S. 368) had been decided and prior to the decision in People v. Huntley ( 15 N.Y.2d 72). The trial court in the absence of the jury took proof as to the voluntariness of the statement and gave appellant an opportunity to call witnesses which was declined. The statement had been taken in the presence of defendant's trial counsel and the latter informed the court that the statement was "voluntary".