People v. Fair

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

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.