People v. Rakiec , 23 N.Y.S.2d 607 ( 1940 )

Bliss, J.

(dissenting). I respectfully dissent from the opinion for reversal.

Section 295-1 of the Code of Criminal Procedure is very broad and by its plain terms prevents a defendant as well as other witnesses in Ms behalf from testifying to Ms presence elsewhere than at the scene of the crime unless he has given a bill of particulars when demanded by the prosecuting officer. The statute makes no exception when the defendant himself offers to testify to the alibi. There is nothing m the statute wMch would prevent a defendant or other defense witness from testifying that he was not at the scene of the crime. However, if he desires to prove Ms presence elsewhere at the time- the crime was committed and the district attorney has served the demand mentioned in the statute, then the defendant must follow the procedure outlined in the statute before he may give such testimony. The statute relates oMy to the procedure to be followed in advance of the trial. A defendant, by following such procedure, may prove an alibi by himself or others. There has been no deprivation of a substantial right. Although, the statute by its own terms provides otherwise, the majority are about to read into it an exception to the effect that it does not apply when a defendant himself offers to testify to the alibi. I feel that we have no recourse other than to accept the law as written.

Judgment of conviction 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 mght of the alleged crime.