Opinion
June 23, 1965
Appeal from the Orleans County Court.
Present — Bastow, J.P., Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously affirmed. Memorandum: In the light of the subsequently decided case of People v. Gunner ( 15 N.Y.2d 226) the trial court erroneously excluded from evidence on the authority of Escobedo v. Illinois ( 378 U.S. 478) the defendant's written statement which resulted in the dismissal of the first and second counts of the indictment charging rape, second degree. We find, however, sufficient proof to justify affirming the judgment entered upon the jury's verdict finding defendant guilty of the fourth, fifth and sixth counts of the indictment.