Opinion
February 1, 1943.
Appeal from Court of Special Sessions of the City of New York.
Judgment reversed on the law, the information dismissed, and bail exonerated. The only evidence offered by the People was that of the arresting officer. He testified that he had had the premises, known as the Hotel Majestic, under observation for a period of less than two hours. During that period he saw several couples enter the hotel without baggage and other couples leave without baggage. He then entered the hotel, secured the registration cards from defendant, and, accompanied by the defendant, went to the rooms indicated thereon. In each of three rooms he found a man and woman, who admitted in the presence of defendant that they were not man and wife and that they came to the premises for an illicit purpose. Defendant was asked by the officer whether he heard what had been said by the third parties and he answered in the affirmative. This evidence by the officer was received over the objection and exception of defendant and a motion to strike it out was denied insofar as it referred to a man spoken of as Larsen or "Dowling." The evidence was inadmissible. "Statements of third parties in the presence of a defendant are not evidence and never can be evidence. They are only important to show the reaction of the defendant to the statements and if that reaction does not show some admission against interest the whole conversation should be stricken from the record." ( People v. Botto, 135 Misc. 39, 40.) No admission against interest can be inferred from the answer of defendant. His answer was true. He had heard what was said, but an admission that he had heard the statements was not an admission of the truth of the statements. With this evidence out of the record, there is no proof that the occupants of the various rooms were not married couples. The man spoken of in the record as Larsen or "Dowling" stated to the officer that he had been to the hotel previously a number of times with different women. Defendant admitted that he knew the man as "Dowling," that he had been to the hotel often, and that he had seen him "with different women on different times." There is no evidence that on such prior visits the man had registered. The People failed to make out a prima facie case. The appeal from the sentence is dismissed. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.