Opinion
January 28, 1958
Appeal from the Bronx County Court.
Judgment affirmed under the provisions of section 542 of the Code of Criminal Procedure.
In my view of this case the curtailment of the examination of the brother-in-law, the failure to permit the mother to clarify her testimony as to the change of date when the detectives visited her home, and the unduly extended cross-examination of the sister after it had been established that she had been to a clinic (despite the absence of objection in this instance), by themselves cumulatively constituted error that deprived the defendant of a fair trial. This is particularly true in light of the substantial alibi testimony and the questionable use by the prosecution of testimony of the failure of the defendant to identify another person. For these reasons, I dissent and vote to reverse and grant a new trial as a matter of law.
Botein, P.J., Breitel, Valente and Bergan, JJ., concur in decision; Stevens, J., dissents and votes to reverse and grant a new trial, in opinion.
Judgment affirmed.