People v. Luciano
251 A.D. 887
N.Y. App. Div.
1937
Check Treatment

Concurrence Opinion

Untermyer, J.

I concur in the affirmance of the judgments as to all the defendants, except that in my opinion the sentences are excessive and, under the authority vested in us by section 543 of the Code of Criminal Procedure, should be reduced.

*888I am further of opinion that the new evidence, consisting of the recantation of three of the four principal witnesses against the defendant Luciano, and of the statement tending to show that the testimony of the fourth principal witness was false in a material particular, was of such importance as to require the trial justice, in the exercise of his discretion, to compel the production of those witnesses for examination and cross-examination under oath in open court. I accordingly vote to modify the order denying the motion for a new trial in this respect as to the defendant Luciano. (People v. Arata, 254 N. Y. 565; People v. Shilitano, 215 id. 715; People v. Leonti, 262 id. 256, 258; Code Grim. Proc. § 465, subd. 7.)

Cohn, J. I vote for affirmance as to all defendants, but concur with Untermyer, J., with respect to the motion for a new trial.





Lead Opinion

Judgments and orders affirmed. No opinion.

Martin, P. J., Dore and Callahan, JJ., concur; Untermyer, J., concurs in the affirmance of the judgments as to all defendants, except as to the sentences, which he is of opinion are excessive and should be reduced; and also votes to modify the order, denying the motion for a new trial on the ground of newly-discovered evidence as to the defendant Luciano. Opinion by Untermyer, J. Cohn, J., votes for affirmance of the judgments as to all defendants but concurs with Untermyer, J., with respect to the motion for a new trial. Present—■ Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ.