Citation Numbers： 37 N.Y.2d 639, 376 N.Y.S.2d 449, 1975 N.Y. LEXIS 2200, 339 N.E.2d 147
Judges： Cooke, Jones
Filed Date： 10/30/1975
Status： Precedential
Modified Date： 10/19/2024
(dissenting). Demonstrations are permitted in court to show that an object behaves in a certain way provided the conditions under which they are performed are identical or substantially the same as those existing at the time of the event to which they relate (People v Fiori, 123 App Div 174, 185-187; Fisch, New York Evidence, § 145). Since there were substantial dissimilarities regarding the actual pole and the model employed, both as to height and embedment, and in the absence of proof that the severity of the force applied in the courtroom even approximated that expended at the time in question, the demonstration was not relevant to the issue and should have been excluded as a matter of law (Yates v People, 32 NY 509, 511-512; Kratche v
Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur with Judge Jones; Judge Cooke dissents and votes to reverse in a separate opinion in which Chief Judge Breitel concurs.
Order affirmed, with costs.