People v. Nappo

178 A.D. 906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1917
• Status: Published

Opinion

This conviction of burglary in the third degree was against the weight of evidence. There was no sufficient proof of the defendant’s commission of the crime. The testimony of the witness Burns to hearing the defendant’s voice in the apartment was attempted to be corroborated by her statement that she saw him in the hallway through broken panes of a window in the rear room. This description of the window was negatived by proof that, three weeks later, hone of the panes was then broken or cracked, or bore evidence of having been replaced. We think, also, the matter of defendant’s employment and his alleged statement, “ I don’t have to work,” was a collateral one, on which it was error to call Officer Mealli in contradiction,' in which his alleged remarks to defendant were decidedly prejudicial to his character for industry or steady employment. (People v. Gibson, 24 App. Div. 12; People v. De Garmo, 179 N. Y. 130, 134; Whart. Grim. Ev. [10th ed.l § 429a.) The judgment of conviction of the County Court of Kings county is reversed, and a new trial ordered. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred.