People v. Pecoraro

177 A.D. 803, 35 N.Y. Crim. 543, 164 N.Y.S. 1058, 1917 N.Y. App. Div. LEXIS 5849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1917
• Status: Published

Opinions

Jenks, P. J.:

The defendant was tried for abduction, and convicted. At the outset of trial the People called a stenographer who had taken notes of a conversation between the sheriff and the defendant. She produced and swore to the correctness of a transcript of her notes, and finally, after objections and discussion, the “confession ” was admitted in evidence. Before it was received, in addition to several objections the defendant’s counsel had asked the court “ at this time to try out the issues as to whether or not this was a legal, voluntary confession,” and for an opportunity “ to cross-examine this" witness to ascertain whether or not it was a voluntary legal confession.” Exceptions had been taken to the refusals of the court. I am of opinion that these exceptions should be sustained and that a new trial should be ordered. (People v. Fox, 121 N. Y. 449; People v. Rogers, 192 id. 331, 334; Commonwealth v. Culver, 126 Mass. 464; Biscoe v. State, 67 Md. 6.) Professor Wigmore in his work on Evidence (§ 861) states: “In determining admissibility, the judge must hear the defendant's evidence (including evidence from cross-examination of the prosecution’s witnesses) upon the issue of voluntariness.” I think that the objections or requests were sufficient to protect the rights of the defendant in this respect. Thus in People v. Rogers (supra), when the court discussed the rule, Willard Bartlett, J., for the court says (p. 346): “The record contains no suggestion of any offer in behalf of the defendant to prove any circumstances tending to show that the confession was improperly obtained or any request on his part to be allowed to give evidence on the subject. In other words, he did not invoke the rule laid down in the cases cited.” Error came into existence when the court received the confession irrespective of the subsequent course of the trial. (People v. Fox, supra, 454; Commonwealth v. Culver, supra, 466, a case approved and cited in both Rogers’ Case and Fox’s Case, supra.)

There are other rulings of the court that are not beyond criticism. ■ Notably, the talk between the defendant and Miller might have been competent after testimony of the defendant as to the defendant’s conversation with Joyce.

The judgment of the County Court of Westchester county is reversed, and a new trial is ordered.

Mills and Rich, JJ., concurred; Putnam, J., read for affirmance, with whom Thomas, J., concurred.