Opinion
November, 1932.
Appeal from Court of General Sessions of the County of New York.
Present — Finch, P.J., McAvoy, Martin, O'Malley and Townley, JJ.; McAvoy, J., taking no part.
Judgment affirmed. No opinion.
In voting to affirm this judgment of conviction I cannot refrain from referring to a ruling which I deem erroneous, although not so prejudicial as to require reversal. (Code Crim. Proc. § 542.) In my opinion it was improper to permit the witness Acuna to testify to having been offered money by Officer O'Connor in consideration of his refusal to testify against police officers. This evidence was received and its competency predicated upon the fact that O'Connor was one of the four officers, including the defendant, who were concerned in the arrest of the complainant, Betty Smith. The defendant Glenn was not shown to have been in any way connected with the offer, nor was there any evidence from which an inference that O'Connor was acting as defendant's agent might be drawn, save that he was one of those concerned with the defendant in the arrest. Evidence of like character has been condemned and made the basis for reversal of a judgment of conviction of murder in the first degree ( People v. Buzzi, 238 N.Y. 390). In my view there was less justification for reception of this evidence here than in the Buzzi case, for the reason that Officer O'Connor may have had a motive of his own in attempting to suppress evidence. However, by virtue of the provisions of the statute above cited, I am constrained to vote for affirmance.