People v. Harbor

258 A.D. 1082, 18 N.Y.S.2d 100, 1940 N.Y. App. Div. LEXIS 8973

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1940
• Status: Published

Opinion

Judgment of the County Court of Queens County convicting the defendant of burglary in the third degree as a second offender and sentencing him to not less than ten and not more than twenty years in Sing Sing Prison unanimously affirmed. As the record clearly establishes defendant’s guilt, it was not prejudicial error for the prosecution to prove that an accomplice who testified as a witnesn had pleaded guilty to the same offense, there being no objection or exception by the defendant and the testimony being elicited after a factual recital by the witness which established his participation in the offense and his guilt. In People v. O’Regan (221 App. Div. 331) there was no factual recital by the accomplices (who had been previously convicted) which established their participation in the offense and their guilt. The questions designed to elicit their prior conviction of the same offense as was charged against the defendant O’Regan was the subject of objection and exception and on the whole case the defendant O’Regan’s guilt was not deemed to have been established with such clearness as would warrant the court treating the error as not prejudicial. A prosecuting officer should not elicit whether or not an accomplice testifying as a witness has been convicted or has pleaded guilty to a charge based on an occurrence which is the subject of inquiry. He should confine the inquiry to the facts which show the participation of the accomplice in the occurrence and with whom he participated. Whether or not such an accomplice has been convicted or pleaded guilty should be left to the defendant to elicit. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ.