People v. Cashman

137 Misc. 98, 244 N.Y.S. 182, 1930 N.Y. Misc. LEXIS 1448

Opinion

Herbert, P. J.

The appellant appeals from a conviction in a Magistrate’s Court of violating subdivision 4-e of section 887 of the Code of Criminal Procedure. Another woman, named Damglod, was tried at the same time, by consent, and acquitted of the same charge. The witnesses for the People testified that the appellant and the Damglod woman accompanied them to rooms “ upstairs ” in the premises in question. This the appellant and the Damglod woman denied. At the trial before the magistrate the question of whether or not the women accompanied the men to rooms upstairs played an important part. On February 6, 1930, on page 2 of the minutes of that date, the trial court stated: “ In the case of Irene Damglod, on February 1st, 1930, I was ready to dispose of that case, but there was no stenographer here. At that time, the said Irene Damglod stated to me that her testimony with reference to not being up in a room with a man was untrue.” This statement, not under oath, made to the court by one of the defendants at a time when no hearing was had and no counsel present, was la,ter objected to on more than one occasion by counsel for the appellant Cashman, and, in our opinion, constitutes a reversible error for which a new trial must be had.

Judgment reversed on the law, the facts having been examined, and a new trial ordered in the Magistrates’ Court.

Salmon and Fetherston, JJ., concur.