228 A.D. 705 | N.Y. App. Div. | 1930
Judgment of conviction of the County Court of Queens county reversed upon the law and the facts and a new trial ordered. It was error to refuse the request of counsel to be permitted to use the magistrate’s minutes, admittedly genuine and in the hands of the district attorney trying the case, for the purpose of cross-examining the police officer without whose testimony the conviction could not be supported. It was also error to refuse the request to have these minutes marked for identification, but that does not leave us helpless to see justice done, as a copy of the minutes, not disputed as to correctness, was submitted with the record on appeal, and from it we think there are substantial variances in the two stories told by the officer respectively before the magistrate and upon this trial, which were fairly the subject of inquiry by defendant’s counsel. Other errors are brought to our attention, such as the court’s examination of one of the defendants as to the routes and ways of going to Brooklyn and returning to Jamaica, and that portion of the assistant district attorney’s summation that “ Perhaps the defendants will do the same thing over again,’’ but as they will probably not occur on the retrial, it suffices to base a reversal on the errors first pointed out. The ease was not so clear as to permit us to affirm under section 542 of the Code of Criminal Procedure. Lazansky, P. J., Rich, Kapper and Seudder, JJ., concur; Carswell, J., concurs because of error in refusing counsel’s request to be permitted to use the minutes of the hearing before the magistrate, and of error in refusing to have such minutes marked for identification.