15 A.D.2d 457 | N.Y. App. Div. | 1961
The defendant has been adjudged the father of twin boys born to the complainant on September 18, 1957. While testifying that she and the defendant engaged in sexual intercourse during the crucial period the complainant did admit on cross-examination — after a denial on direct examination ■—that she had relations with one “John Doe ” in North Carolina in October, 1956. She also admitted remaining in North Carolina until the end of November of the same year. Certainly the complainant’s attempt to conceal this information may well give it added significance upon the subsequent elicited disclosure. While it is true that the admitted act in October may be too remote in time to permit a conclusion that it gave rise to the pregnancy, the fact that the complainant remained in North Carolina until the end of November brings us to a point of time which is reasonably close to the apparent time of conception. In addition, the complainant testified — albeit with some uncertainty — that she may have seen “ John Doe” in New York in 1956. This could well have meant that she saw him in December, 1956—-the most likely period for conception to have taken place. The interests of justice require that there be a retrial with a further and more thorough and detailed explanation of facts with reference, inter alia, to the period of time complainant spent in North Carolina, the time of her departure therefrom and the time of “ John Doe’s ” visit to New York. Concur — Botein, P. J., Breitel, Rabin, Valente and Steuer, JJ.