40 A.D.2d 779 | N.Y. App. Div. | 1972
Judgment of the Supreme Court, New York County, rendered February 4, 1971, convicting defendant, after trial before Davidson, J. and a jury, of manslaughter in the first degree [former Penal Law, § 1Ó50] and sentencing him to imprisonment of not less than 10 nor more than 20 years, affirmed. This is the third trial of this case, the first two having ended respectively in a disagreement and a mistrial. Two eyewitnesses saw the defendant shoot and kill Marine Sergeant Kroll and a third eyewitness, who had been watching Maynard during an earlier confrontation, saw Maynard in immediate flight from the scene of the shooting. The record shows that Maynard’s guilt was established beyond a reasonable doubt. It was not error to reject the testimony of one Levy with reference to street lights, The People’s witness Weinstein, Deputy Director in charge of the Engineering Division of the New York City Bureau of Gas and Electricity, had been called as a witness by the People to establish the existence of light fixtures. He was not called as an expert to give opinions on lighting effects. The so-called expert testimony that he gave was testimony elicited for the first time during defendant’s cross-examination of Weinstein. Counsel by its cross-examination had made Weinstein his own witness on these subjects, and the trial court’s ruling that defendant may not call Levy as an expert witness to contradict expert testimony elicited by him was within the bounds of its discretion, As is said in Bender’s New York Evidence, (vol. 1, § 27.03): “Normally, strict order of proof requires that when a party desires to examine an adversary’s witness on matters outside the scope of cross-examination, he must call that witness as his own for direct examination. In actual practice, this rule is usually relaxed when a cross-examiner brings up new matter. However, when that occurs, the witness then becomes the witness of the adverse party who is bound by the answers. Such witness, when questioned on new matter, may not be contradicted by other evidence.” We have examined the other assignments of error- and found them to be without merit. Concur — Kupferman, McNally and Tilzer, JJ.; Stevens, P. J., and Murphy, J., dissent in the following memorandum by Murphy, J.: We cannot vote to affirm this conviction because of the numerous errors committed at the trial; some Of which are discussed below. The defendant was convicted of manslaughter in the first degree and sentenced to imprison