People v. Fair

Appellate Division of the Supreme Court of New York

People v. Fair

35 A.D.2d 519, 312 N.Y.S.2d 353, 1970 N.Y. App. Div. LEXIS 4164

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 1970

StatusPublished

Cited by2 cases

This text of 35 A.D.2d 519 (People v. Fair) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Fair, 35 A.D.2d 519, 312 N.Y.S.2d 353, 1970 N.Y. App. Div. LEXIS 4164 (N.Y. Ct. App. 1970).

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Opinion

Concur—Stevens, P. J., Eager and Nunez, JJ.; McGivern and McNally, JJ., dissent in the following memorandum by McNally, J.: I would affirm the judgment of conviction. Cross-examination of the defendant was well within the bounds set out in People v. Alamo (23 N Y 2d 630). The Assistant District Attorney presented to the trial court fully and fairly the basis for his cross-examination of the defendant relative to the Marcus and Ferrusa incidents. The trial court found and the record fully substantiates the cross-examination was conducted upon a good-faith factual basis. I am aware that the Court of Appeals will not review a criminal case where the Appellate Division reverses and in the interest of justice directs a new trial. (People v. Campbell, 25 N Y 2d 784; People v. Rossi, 11 N Y 2d 787, 788; People v. Mendola, 2 N Y 2d 270, 274; People v. Redmond, 225 N. Y. 206, 208; Cohen and Karger, Powers of the Court of Appeals [rev. ed.], p. 754.) I have grave doubts as to the reversal here in the interest of justice. It would seem to me the reversal in the instant case is one on law. I find no basis in the record for a reversal in the interest of justice and the majority in my opinion based the reversal solely on the alleged improper cross-examination.

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Concur—Stevens, P. J., Eager and Nunez, JJ.; McGivern and McNally, JJ., dissent in the following memorandum by McNally, J.: I would affirm the judgment of conviction. Cross-examination of the defendant was well within the bounds set out in People v. Alamo (23 N Y 2d 630). The Assistant District Attorney presented to the trial court fully and fairly the basis for his cross-examination of the defendant relative to the Marcus and Ferrusa incidents. The trial court found and the record fully substantiates the cross-examination was conducted upon a good-faith factual basis. I am aware that the Court of Appeals will not review a criminal case where the Appellate Division reverses and in the interest of justice directs a new trial. (People v. Campbell, 25 N Y 2d 784; People v. Rossi, 11 N Y 2d 787, 788; People v. Mendola, 2 N Y 2d 270, 274; People v. Redmond, 225 N. Y. 206, 208; Cohen and Karger, Powers of the Court of Appeals [rev. ed.], p. 754.) I have grave doubts as to the reversal here in the interest of justice. It would seem to me the reversal in the instant case is one on law. I find no basis in the record for a reversal in the interest of justice and the majority in my opinion based the reversal solely on the alleged improper cross-examination.

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Bluebook (online)

35 A.D.2d 519, 312 N.Y.S.2d 353, 1970 N.Y. App. Div. LEXIS 4164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fair-nyappdiv-1970.

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