Opinion
286 A.D. 890 142 N.Y.S.2d 351 The PEOPLE of the State of New York, Respondent, v. Isaac NAMER, also known as David Grossman, Appellant. Supreme Court of New York, Second Department June 27, 1955.
Solomon A. Klein, Brooklyn, for appellant.
Henry P. De Vine, Mineola, for respondent.
Before NOLAN, P. J., and MacCRATE, BELDOCK, MURPHY and UGHETTA, JJ.
MEMORANDUM BY THE COURT.
Judgment of the County Court, Nassau County, convicting appellant of felonious possession of a pistol, Penal Law, § 1897, affirmed.
The record discloses that the pistol, a loaded automatic, was found in appellant's garage, in a paper bag, folded into a tarpaulin, owned by appellant and apparently placed there by him, together with a carbine and a number of tools and other utensils which were also appellant's property. The pistol was loaded with eight cartridges, and a box of similar cartridges, with eight missing, was found in the attic of appellant's home. There is also in the record, uncontradicted testimony that when questioned about the pistol, appellant denied knowledge of it, but later admitted that, 'if the detectives say they found the gun there,' he must have put it there. Concededly, the garage was not kept locked, and was accessible to others. Appellant stated, however, that his wife did not own the gun, and his relatives and friends, who testified, denied knowledge of it. Appellant contends that the evidence was insufficient to establish possession, within the meaning of the statute, and that he was deprived of a fair trial by reason of prejudicial conduct by the assistant district attorney who represented the People, and the admission of incompetent and prejudicial evidence against him. While appellant's claims of error are not without merit, it is our opinion that the evidence was sufficient to establish his illegal possession of the pistol, beyond a reasonable doubt, and that the errors complained of did not affect the result, particularly in view of the uncontradicted evidence as to appellant's admission that he must have had the gun in his possession. The errors may, accordingly, be disregarded. Code Cr.Proc. § 542.
No separate appeal lies from intermediate orders, which have been reviewed on the appeal from the judgment of conviction.
NOLAN, P. J., and MacCRATE and BELDOCK, JJ., concur.
MURPHY and UGHETTA, JJ., dissent and vote to reverse the judgment of conviction and to order a new trial, with the following memorandum:
It was highly prejudicial to appellant to show that he was a parole violator, to place before the jury the details of his arrest and the events which preceded it, and to introduce as physical exhibits the tools and other equipment found in the garage. Although much of this mass of incompetent evidence was admitted without suitable objection, and some of it with the acquiescence and co-operation of appellant's trial counsel, a person accused of a crime is entitled to a fair trial of the issue of his guilt or innocence, unencumbered by incompetent, immaterial and prejudicial evidence, and the interests of justice require that such a trial be accorded him.
Furthermore, since the evidence shows without dispute that the pistol was found in an open garage, accessible to serveral persons, it is questionable that even the competent evidence establishes the crime of possession. People v. Tumminaro, 242 A.D. 501, 275 N.Y.S. 778.