People v. Rakiec

Appellate Division of the Supreme Court of New York

People v. Rakiec

261 A.D. 864, 24 N.Y.S.2d 791, 1941 N.Y. App. Div. LEXIS 7814

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

DecidedJanuary 15, 1941

StatusPublished

This text of 261 A.D. 864 (People v. Rakiec) 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. Rakiec, 261 A.D. 864, 24 N.Y.S.2d 791, 1941 N.Y. App. Div. LEXIS 7814 (N.Y. Ct. App. 1941).

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Opinion

On an appeal by the defendants from conviction and sentence this court handed down its decision on October 31, 1940 [260 App. Div. 452], that the judgment of conviction be reversed “ upon the law and facts, and new trial-granted upon the ground that the defendant Shambrock was not permitted to testify fully as to his whereabouts on the night of the alleged crime.” The People now move to resettle the order entered upon this decision so as to strike out the statement that the reversal was upon the facts as well as upon the law. Upon the appeal no question was raised by the defendants with regard to the facts or to the weight of the evidence. No point was made that the convictions were not justified by the evidence presented upon the trial, nor did the majority or dissenting opinion discuss the sufficiency of the evidence. The sole questions involved were the constitutionality of section 295-1 of the Code of Criminal Procedure and whether this section was applicable to the defendants as well as to their witnesses in their behalf, and the argument dealt solely with these questions. The mere posing of these questions demonstrates that they are of law only. The motion should be granted. Motion granted. Present — Hill, P. J., Bliss, Heffernan, Sehenek and Foster, JJ.

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On an appeal by the defendants from conviction and sentence this court handed down its decision on October 31, 1940 [260 App. Div. 452], that the judgment of conviction be reversed “ upon the law and facts, and new trial-granted upon the ground that the defendant Shambrock was not permitted to testify fully as to his whereabouts on the night of the alleged crime.” The People now move to resettle the order entered upon this decision so as to strike out the statement that the reversal was upon the facts as well as upon the law. Upon the appeal no question was raised by the defendants with regard to the facts or to the weight of the evidence. No point was made that the convictions were not justified by the evidence presented upon the trial, nor did the majority or dissenting opinion discuss the sufficiency of the evidence. The sole questions involved were the constitutionality of section 295-1 of the Code of Criminal Procedure and whether this section was applicable to the defendants as well as to their witnesses in their behalf, and the argument dealt solely with these questions. The mere posing of these questions demonstrates that they are of law only. The motion should be granted. Motion granted. Present — Hill, P. J., Bliss, Heffernan, Sehenek and Foster, JJ.

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Bluebook (online)

261 A.D. 864, 24 N.Y.S.2d 791, 1941 N.Y. App. Div. LEXIS 7814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rakiec-nyappdiv-1941.

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