Opinion
December 30, 1942.
Judgment of the County Court of Queens County convicting defendant of the crime of attempted rape, first degree, reversed on the law and a new trial ordered. The defendant has been convicted of the crime of attempted rape, first degree, alleged to have been committed on March 21, 1942, upon his eleven-year-old niece. The defense was one of alibi to the effect that defendant had been missing from his home from the night of March 19th to the morning of March 23rd. On the cross-examination of defendant's wife she denied having a conversation on March 25th with the detective who arrested the defendant later that day, in which she was alleged to have stated that she did not want to have anything to do with her husband. The detective testified in rebuttal that at the police station on March 25th defendant's wife gave him the business address of defendant and also said to him, "I want to see no more of him, he is no husband of mine. He is dead to me." The inference flowing from this testimony was that defendant's wife believed him to be guilty of the crime charged, and the District Attorney in summation requested the jury to draw such inference. The evidence was entirely improper and prejudicial to defendant's right to a fair trial. ( People v. Countryman, 201 App. Div. 805.) Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.