United Interchange, Inc. v. Helwege

5 A.D.2d 997, 173 N.Y.S.2d 1010, 1958 N.Y. App. Div. LEXIS 6297

Opinion

Appellant was convicted after trial before a City Magistrate sitting as a Court of Special Sessions of the City of New York, Borough of Brooklyn, of violating subdivision 5-a of section 70 of the Yehicle and Traffic Law (leaving the scene of an accident without reporting). Appellant was sentenced to pay a fine of $50 or to serve five days, and his license was revoked. The fine was paid. The appeal is from the judgment of conviction and the sentence imposed. Judgment reversed on the law and the facts, new trial ordered, and fine remitted. On this record, it was prejudicial error to reject the proffered testimony of appellant’s witness, an eight-year-old boy, without conducting a preliminary examination to determine if he was competent to testify (Code Crim. Pro., § 392; Wheeler v. United States, 159 U. S. 523; People v. Klein, 266 N. Y. 188; People v. Tanaglea, 241 App. Div. 823; Olshansky v. Prensky, 185 App. Div. 469; People v. Shlansky, 256 N. Y. 538; People v. Brescia, 283 App. Div. 971; cf. People v. Dropkin, 261 App. Div. 223). No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction.

Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.