People v. McElroy

285 A.D. 846, 136 N.Y.S.2d 693, 1955 N.Y. App. Div. LEXIS 5771

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1955
• Status: Published

Opinion

Defendant’s appeal is from a judgment convicting him of murder, second degree, under an indictment charging murder in the first degree. After conviction defendant made public admissions in open court of facts which would indicate that he had committed murder in the first degree. His counsel, who is in this case on our assignment, is thus met with the problem that will arise if he successfully prosecutes the appeal and a new trial is ordered, that the statements volunteered by defendant on the first trial will be deemed judicial admissions by him on a subsequent trial. This motion is for an inspection of the psychiatric studies made for the District Attorney during the pendency of the trial and of the studies made by the Department of Correction after he was in prison. We think that the power is inherent in this court in aid of a determination whether it is in the interest of the defendant to continue or withdraw this appeal, to allow the inspection sought. This is entirely apart from the objection, which would be valid enough, that the examinations, not a part of the record on which the judgment is based, could not be considered on the question whether the judgment should be affirmed or reversed. If appellant was sane when the admissions were made in court his interests might be served by discontinuing the appeal, if he is so advised. Motion granted. We are of the opinion that following this inspection counsel should promptly decide, and advise the District Attorney and the court, whether the appeal is to be withdrawn or prosecuted. Present — Foster, P. J., Bergan, Coon, Imrie and Zeller, JJ.