People v. Collins

• Decision Date: 29 December 1970
• Citation: 316 N.Y.S.2d 910,35 A.D.2d 1048
• Parties: The PEOPLE of the State of New York, Respondent, v. James COLLINS, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 910

316 N.Y.S.2d 910

35 A.D.2d 1048

The PEOPLE of the State of New York, Respondent, v. James COLLINS, Jr., Appellant.

Supreme Court, Appellate Division, Third Department.

Dec. 29, 1970.

Arnold W. Proskin, Albany County Dist. Atty., Albany (James F. Downs, Albany, of counsel), for respondent.

Andrew M. Pinckney, Albany County Public Defender, Albany (James L. Perkins, Albany, of counsel), for appellant.

Before HERLIHY, P.J., and REYNOLDS, STALEY, COOKE and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court, Albany County, rendered February 21, 1969, upon a verdict convicting defendant of the crime of assault, second degree, in violation of section 120.05 of the Penal Law.

There are several issues raised by the defendant on this appeal. We find no merit in any of them. The fact that there was an unresponsive answer to a question asked of one Summers, the victim, by the prosecutor, does not render it inadmissible if the testimony was otherwise proper. The witness volunteered that the defendant asked him not to press charges. While the answer exceeded the bounds of the question, it was, nevertheless, admissible as an admission. It did not offend Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, nor was a notice pursuant to section 813--f of the Code of Criminal Procedure required, since the statement was made to a private party (People v. Miranda, 23 N.Y.2d 439, 448, 297 N.Y.S.2d 532, 538, 245 N.E.2d 194, 198). An examination of the record reveals that there was sufficient identification of the knife used in the assault to permit its reception in evidence. We also conclude that the court properly exercised its discretion in guilding the questioning by defendant of the victim along relevant lines on the issue of homosexuality. (See People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, 640.) Finally, since defendant took the stand in his own behalf and gave conflicting testimony as to whether or not he had stabbed Summers, it was proper for the court to permit the arresting officer to testify in rebuttal that defendant admitted the stabbing. (People v. Wellington, 26 N.Y.2d 891, 309 N.Y.S.2d 935, 258 N.E.2d 217.) In any event this testimony was cumulative. The other issues raised by defendant require no comment as there were no exceptions taken. (People v. Semione, 235 N.Y. 44, 46, 138 N.E. 500.)

Judgment affirmed.