| N.Y. App. Div. | Nov 6, 1939
Judgment of the County Court of Dutchess county convicting the defendant of the crime of criminal negligence in the operation of a motor vehicle,, resulting in death, and order denying motion for a new trial, affirmed. Athough we are of opinion that it was improper for the district attorney to cross-examine, defendant’s medical witness as to whether or not he had been suspended from the staff of a hospital, we regard that error as coming within the province of section 542 of the Code of Criminal Procedure. The proof warranted a conviction irrespective of the question of defendant’s intoxication. In any event, tha showing is impressive that, regardless of the degree of intoxication, defendant’s judgment and ability were substantially affected by the whisky which eoneededly she had consumed. Lazansky, P. J., Hagarty, Carswell and Close, JJ., concur; Adel, J., dissents with the following memorandum: I dissent and vote to reverse the judgment and order appealed from and to order a new trial. The most important element entering into the charge of criminal negligence was the claim that the defendant was intoxicated at the time of the accident. Evidence on this phase of the case was offered by the People and the defendant. .The court erred in permitting improper questions on the cross-examination of the defendant’s medical witness which had the effect of destroying the value of his testimony on this point. I do not think that such error can be treated as harmless and not affecting the, substantial rights of the defendant.