Opinion
April 5, 1943.
Judgment of the County Court, Kings County, convicting defendant of the crime of robbery in the first degree, reversed on the law and the facts and a new trial ordered. Under the circumstances, the finding that the confession of the defendant was freely and voluntarily made was against the weight of the evidence. The learned trial court should have excluded the confession. ( People v. Weiner, 248 N.Y. 118; People v. Barbato, 254 N.Y. 170.) The theory that the defendant and the codefendant, indulged in fisticuffs between the time they were placed in the detention pen and the time of their arrival at the City Prison is a sheer supposition without evidence to support it. ( People v. Barbato, supra, 176, 177.) The photographs of this defendant indicate that he bore a "black eye" prior to his arraignment, despite the testimony of the police officers that he was unmarked at that time.
Close, P.J., Hagarty, Carswell and Johnston, JJ., concur;
Upon the testimony of the many witnesses who said that the defendant was not struck and that he showed no marks of physical violence, and the testimony of the photographer, in my opinion, it may not be said that the verdict of the jury, implicit in which is the finding that the confession of the defendant was freely and voluntarily made, is against the weight of the evidence.