181 Misc. 696 | N.Y. Sup. Ct. | 1943
The convicted defendants have applied for a certificate of reasonable doubt and for admission to bail pending an appeal. A jury in the Bronx County Court found them guilty of manslaughter in the first degree. The trial proceeded upon an indictment under subdivision 2 of section 1050 of the Penal Law, which provides that a person who, with intent to procure the miscarriage of a woman by the use of certain means specifically referred to, unless the same is necessary to preserve her life, is guilty of manslaughter if the woman dies. The People charged that as a sequel to a criminal operation performed by these defendants upon one Madylon McGeehan, the said Madylon McGeehan succumbed. With this brief statement of the facts the charge itself requires no further elaboration.
We come how to a consideration of the application, which presents but a single specification. That concerns itself with the receipt in evidence of an autopsy report and opinion evidence given with respect thereto. On November 18, 1942, at the Fordham Morgue, one Dr. Louis F. Lefkowitz, Assistant Medical Examiner of Bronx County, performed an autopsy on the body of the deceased. During the course of the autopsy he dictated his findings to a stenographer employed in the Medical Examiner’s office. When the autopsy was completed the stenographer, transcribed his notes and prepared a report, which Dr. Lefkowitz had so dictated, and which report the doctor signed and it was then filed in the Medical Examiner’s office. Before the trial of the defendants Dr. Lefkowitz died. The People called the stenographer as a witness, who testified to his presence at the autopsy, the accuracy of the transcription of the findings that were dictated to him, the preparation of the autopsy report and the signing and filing thereof. The report was received in evidence, over objection and exception of defendants’ counsel. The prosecution then called as a witness Dr. Gonzales, Chief Medical Examiner, who, although not present at the autopsy, was, despite the objection of defendants’ counsel, permitted to express his opinion as to the cause of death based upon the report. It may be remarked in passing that the District Attorney offered only the findings of the Assistant Medical Examiner and not that portion of the document containing his opinion as to the cause of death.
Whether the admission of the findings of the deceased examiner and the testimony of Dr. Gonzales violated the defendants’ rights is a moot question. The District Attorney frankly observes that there is no case in New York precisely in point, arguing, however, that the autopsy findings were properly
The general rule with respect to the competency of public records, as an exception to the hearsay rule, is simpler in its declaration than in its application. Stated broadly the rule is to the effect that the right of an accused in a criminal proceeding to confront the witnesses who testify against him is not violated by the introduction of public documents. (Heike v. United States, 227 U. S. 131, affg. 192 F. 83; Commonwealth v. Slavski, 245 Mass. 405.) One of the questions here is whether the report can be classified as a public record when it is not open to public inspection but is in the nature of a confidential report to the District Attorney. In support of a liberal interpretation of the rule it has been observed that “ A technical adherence
The District Attorney relies upon the language in the opinion in People v. Reese (258 N. Y. 89). That case involved the question of the competency of unauthenticated fingerprint records
Probably the most recent case considered by the Court of Appeals is People v. Kohlmeyer (284 N. Y. 366). There the court held that hospital records showing diagnoses of a patient who was the accused’s ancestor were admissible on the defense of insanity at the time of the alleged robbery, of which the defendant stood accused. The court there stated: “ Hospital records concededly are included within the records to which section 374-a of the Civil Practice Act is applicable. We find no difference in a recorded diagnosis of a physical condition and of a mental condition. It was error, therefore, to exclude from evidence the parts of the hospital records which were not hearsay.” In my opinion, the holding in that case is not determinative of the question presented on this application. The Kohlmeyer case is distinguishable, for there the accused, and not the People, introduced the records and the defendant’s right of confrontation was not involved.
From what has already been said it must be obvious that a novel question is here presented which calls for the attention and contemplation of appellate tribunal. On an application for a certificate of reasonable doubt it is not necessary that the judge to whom the application is made should be satisfied that the judgment will be reversed. It is enough that he is satisfied that a question of law is raised sufficient for the consideration of the appellate tribunal. (People v. Hines, 12 N. Y. S. 2d 454; People v. Arnstein, 91 Misc. 177, 185; People v. Kelly, 127 Misc. 300; People v. Hummel, 49 Misc. 136; People v. Flaherty, 110 N. Y. S. 154, 155.)
The District Attorney contends that since other evidence, concededly proper, indicates that the cause of death was an incomplete abortion, the cause of death cannot be considered
For the reasons assigned the application is granted. Bail will be fixed upon the settlement of the order. Settle order.