People v. Bernstein

260 A.D. 955, 23 N.Y.S.2d 669, 1940 N.Y. App. Div. LEXIS 5601

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 25, 1940
• Status: Published

Opinion

Judgment of the County Court of Bangs County, convicting the defendant of the crime of attempted burglary in the third degree, reversed on the law and a new trial ordered. The court committed reversible error in calling to the witness stand witnesses subpoenaed by the defendant and not called upon by him to testify, and permitting such witnesses to be interrogated about conversations, not in the presence of the defendant, had with the assistant district attorney, defendant’s counsel, and others, the apparent object of such interrogation being to establish that the alibi presented by the defense was a false concoction. The court also committed reversible error in its charge at folios 419-420 of the record in reference to the defendant’s right to offer testimony of his good character; and at folios 423, 424, in reference to failure of the defense to call certain witnesses to the stand. {People v. Be Martino, 252 App. Div. 476; People v. Rafkind, 254 id. 742; People v. Ferguson, 245 id. 837.) These errors require a reversal even though there was sufficient competent evidence, if accepted by the jury, to establish the guilt of the defendant. Lazansky, P. J., Johnston, Adel, Taylor and Close, JJ., concur.