Citation Numbers: 32 A.D.2d 515
Filed Date: 4/2/1969
Status: Precedential
Modified Date: 1/12/2022
Order entered on September 18,1968, unanimously affirmed. Concur — Eager, J. P., Capozzoli and McNally, JJ.; Nunez, J., concurs in the following memorandum: Defendant appeals from an order denying coraw, nobis relief without a hearing. Appellant with two others (Eugene Topping and Elizabeth McCormick) was accused of murdering one Mayme Wright. He was convicted of murder in the first degree after a joint trial and on January 21, 1957 sentenced to life imprisonment. A detective who had interrogated appellant shortly after the murder testified at the trial to inculpatory statements made by appellant admitting in effect that he had placed his arm around the victim’s neck applying enough pressure to render her unconscious. The statements amounted to complete confession of his guilt of the victim’s murder. Codefendant McCormick testified; although she did not see the actual strangulation of the_ deceased she implicated Moore in the robbery and murder. Appellant did not testify nor did co defendant Topping. The People offered and read into evidence a statement of codefendant Eugene Topping which unequivocally refers to appellant by name and explains how appellant was “ trying to put her [deceased] out * * * with a strangle hold around the neck.” Appellant contends that the admission of Topping’s statement was a denial of his right of confrontation and cross-examination which cannot be cured without a new trial. His contention is predicated on recent decisions of both the United 'States Supreme 'Court and the 'Court of Appeals. (See Bruton v. United States, 391 U. S. 123; People v. Jackson, 22 N Y 2d 446; People v. Baker, 23 N Y 2d 307; Roberts v. Russell, 392 U. S. 293.) In People v. Baker (supra, p. 317) decided by the Court of Appeals November 27, 1968, the court said: “ Defendants stand convicted of a particularly vicious crime. That there is ample evidence to establish the guilt of all six beyond a reasonable doubt (only three even bother to raise this issue) is clear from the record. We are, however, constrained by principle and precedent to reverse the judgments below and order new trials as to all of defendants because of errors committed at the trial, which deprived the defendants of a fair trial and resulted in a constitutionally defective trial. The prime error which compels a reversal and a new trial as to all the defendants is the implication of the defendants in the crime by the confessions and