Opinion
Argued January 19, 1966
Decided February 24, 1966
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH E. LOSCALZO, J.
Louis L. Hoynes, Jr., Anthony F. Marra and Kenneth L. Beaugrand for appellant.
Aaron E. Koota, District Attorney ( Stanley M. Meyer of counsel), for respondent.
Judgment modified by reversing the convictions for assault second degree and by dismissing those two counts of the indictment upon the ground that (as conceded by the prosecution) this record does not contain the corroboration required by section 2013 of the Penal Law, and, as so modified, affirmed. We do not reach the question of the legality of the seizure of the clothing since defendant did not comply with sections 813-c and 813-d of the Code of Criminal Procedure in that he did not make a suppression motion prior to trial and there was no showing of any facts which under those sections would authorize the entertaining of the motion made during the trial.
Concur: Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, BERGAN and KEATING. Judge SCILEPPI dissents and votes to affirm the conviction on all counts, being of the opinion that the record contains the corroboration required by section 2013 of the Penal Law.