255 A.D. 1011 | N.Y. App. Div. | 1938
Judgment of the County Court of Kings county convicting the defendant of the crime of robbery in the first degree affirmed. On this record, error, if any, which survived did not affect the substantial rights of defendant. (See Code Crim. Proc. § 542, People v. Hayes, 140 N. Y. 484, 497; People v. Egan, 242 App. Div. 507, 509-511.) Lazansky, P. J., Carswell, Johnston and Close, JJ., concur; Taylor, J., dissents and votes for reversal and a new trial in the following memorandum: Although (1) the verdict is supported amply by evidence establishing the guilt of the appellant beyond a reasonable doubt, and although (2) no reversible error is presented by the trial judge’s coneededly erroneous charge as to the appellant’s omission to testify (People v. Forte, 277 N. Y. 440), appellant expressly acquiescing in the charge (Fitzpatrick v. International R. Co., 252 id. 127, 140-141; People v. Jackson, 196 id. 357, 362), the arrest of the appellant’s brother, a witness, in the presence of the jury, at the direction of the trial judge and over appellant’s protest and exception, was so prejudicial to the appellant in a substantial way that the interests of justice require that a new trial be granted. (People v. Criscuoli, 164 App. Div. 119, 123, 125. See, also, People v. Egan, 242 id. 507, and People v. Frasco, 187 id. 299.)
