People v. Caccamise

Defendants appeal from judgments of the County Court of Nassau County convicting each of them of the crimes of robbery in the first degree and grand larceny in the second degree and from an order denying their motion for a new trial on the ground of newly discovered evidence. Judgments and order affirmed. The proof of the guilt is overwhelming and in light of the positive identifications of the defendants by the waiter and the bartender at the trial and on January 19, 1951, and the fingerprint proof, the erroneous admission in evidence of the proof with respect to descriptions given to the police after the robbery and the identification of photographs, together with the admission of such photographs, must be deemed to be within the province of section 542 of the Code of Criminal Procedure. Carswell, Acting P. J., Adel, Wenzel and MacCrate, JJ., concur; Schmidt, J., concurs in the affirmance of the order denying the motion for a new trial on the ground of newly discovered evidence, but dissents and votes to reverse the judgments and to grant a new trial on the ground that the erroneous admission of the photographs prejudiced a substantial right of the defendants.