People v. McGhee

Appellate Division of the Supreme Court of New York

People v. McGhee

19 A.D.2d 845, 244 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3080

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

DecidedOctober 28, 1963

StatusPublished

This text of 19 A.D.2d 845 (People v. McGhee) 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. McGhee, 19 A.D.2d 845, 244 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3080 (N.Y. Ct. App. 1963).

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Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 18, 1963 after a jury trial, convicting him of attempted rape in the first degree, assault in the second degree (two counts), burglary in the first degree and carrying a dangerous weapon as a misdemeanor, and imposing" sentence. Judgment reversed on the law and the facts and a new-trial ordered. In our opinion, the indictment and conviction for attempted rape in the first degree were not invalid as a matter of law merely because the uncorroborated testimony of the complainant indicated that the rape had been consummated (People v. Wasserbach-, 271 App. Div. 756). However, we are also of the opinion, and the District Attorney concedes, that the court’s refusal to permit proof of a prior inconsistent statement by the complainant requires a new trial. The excluded proof cast some doubt on complainant’s positive identification of defendant and, in view of the closeness of the testimony on that question, the error was prejudicial and requires reversal of the judgment of conviction. Beldoek, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.

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Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 18, 1963 after a jury trial, convicting him of attempted rape in the first degree, assault in the second degree (two counts), burglary in the first degree and carrying a dangerous weapon as a misdemeanor, and imposing" sentence. Judgment reversed on the law and the facts and a new-trial ordered. In our opinion, the indictment and conviction for attempted rape in the first degree were not invalid as a matter of law merely because the uncorroborated testimony of the complainant indicated that the rape had been consummated (People v. Wasserbach-, 271 App. Div. 756). However, we are also of the opinion, and the District Attorney concedes, that the court’s refusal to permit proof of a prior inconsistent statement by the complainant requires a new trial. The excluded proof cast some doubt on complainant’s positive identification of defendant and, in view of the closeness of the testimony on that question, the error was prejudicial and requires reversal of the judgment of conviction. Beldoek, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.

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Bluebook (online)

19 A.D.2d 845, 244 N.Y.S.2d 500, 1963 N.Y. App. Div. LEXIS 3080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcghee-nyappdiv-1963.