264 A.D. 426 | N.Y. App. Div. | 1942
The indictment originally contained six counts, among them counts charging both defendants with assault in the second degree with intent to commit sodomy. The evidence on behalf of the People, if accepted by the jury, justifies the verdict rendered; but because of errors the judgments will have to be reversed and a new trial ordered.
Upon the trial and in the first instance as the result of questions put by the court on the cross-examination of the defendant Ariano, the fact that the latter had entered a plea of guilty to assault in the third degree was developed. Upon the cross-examination of the defendant Nintzel by the district attorney, the same fact was developed from him. Proper objections were made in both instances and exceptions were taken. On redirect, when the defendants attempted to explain the circumstances surrounding the entry of the plea and its withdrawal, they were unduly hampered by the court’s rulings. This error becomes more important in view of the defense of an alibi and the court’s charge to the jury that their pleas of guilty to assault in the third degree, while not an admission of guilt of the crime charged, were an admission that they were at the place where, and at the time when, the crime was committed. By preventing the defendants from fully disclosing the circumstances surrounding the entry of the pleas of guilty to assault in the third degree, they were deprived of a substantial right that requires reversal. (People v. Steinmetz, 240 N. Y. 411.) Furthermore, it is our opinion under the rulings made that the admission of the plea of guilty to assault in the third degree was not competent evidence in any event and should have been stricken from the record. At the conclusion of the testimony the court dismissed all the counts in the indictment charging assault with intent to commit sodomy. Thereupon the defendants moved that the testimony with regard to the pleas of guilty to assault in the third degree be stricken from the record upon the ground that the pleas did not indicate in any manner any attempt to plead guilty or any consciousness of guilt of the crime charged. The court denied the motion, saying that the pleas admitted guilt of assault in the third degree under the indictment. As the counts charging assault had been dismissed, and the only count remaining contained no element of assault, the pleas of guilty to assault in the third degree did not include a plea of guilty to any element of the only crime of which they then stood accused. It is this circumstance which distinguishes this case from People v. Steinmetz (supra) upon which the learned county judge relied.
Another Federal court in United States v. Adelman (107 F. [2d] 497, 499) states the fundamental argument in favor of excluding the plea in these words: “ When a court allows a defendant to withdraw a plea of ‘ guilty ’ it is because the court finds that circumstances exist which make it unfair to hold him to it. Such circumstances make it equally unfair to use it against him as an admission.”
The judgments should be reversed on the law and a new trial ordered.
Carswell, Johnston and Taylob, JJ., concur; Lazansky, P. J., concurs on the ground that it was error to exclude proof of the circumstances under which the plea of guilty was made and withdrawn. (People v. Steinmetz, 240 N. Y. 411.)
In each case: Judgment of the County Court of Kings County, convicting defendant of the crime of sodomy, reversed on the law and a new trial ordered.