People v. Crimmins

• Decision Date: 07 May 1973
• Citation: 343 N.Y.S.2d 203,41 A.D.2d 933
• Parties: The PEOPLE, etc., Respondent, v. Alice CRIMMINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 203

343 N.Y.S.2d 203

41 A.D.2d 933

The PEOPLE, etc., Respondent, v. Alice CRIMMINS, Appellant.

Supreme Court, Appellate Division, Second Department.

May 7, 1973.

Before RABIN, P.J., and MARTUSCELLO, HOPKINS, MUNDER and CHRIST, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from (1) a judgment of the Supreme Court, Queens County, rendered May 13, 1971, convicting her of murder in the first degree and manslaughter in the first degree, upon a jury verdict, and sentencing her to life imprisonment for the murder and to a prison term of 5 to 20 years for the manslaughter, the sentences to run concurrently; and (2) an order of the same court, dated July 28, 1972, which denied her motion for a new trial on the grounds of newly discovered evidence and improper conduct by the prosecutor in withholding from her information potentially helpful to her defense.

Judgment reversed as to the murder count, on the law and the facts, and that count dismissed, on the law; and judgment reversed as to the manslaughter count and new trial granted as to that count, on the law; and appeal from the order dismiss as moot.

With respect to the count charging the murder of defendant's son, we believe the corpus delicti was not established, since, as a matter of law, the People did not prove, beyond a reasonable doubt, that his death resulted from a criminal act (People v. Deacons, 109 N.Y. 374, 16 N.E. 676; People v. Cuozzo, 292 N.Y. 85, 54 N.E.2d 20; People v. Rooks, 40 Misc.2d 359, 243 N.Y.S.2d 301; see, also, People v. Cleague, 22 N.Y.2d 363, 365--366, 292 N.Y.S.2d 861, 862--863, 239 N.E.2d 617, 618). Hence, that count of the indictment must be dismissed. As to that count, if we were not dismissing, we would reverse and grant a new trial (1) because the jury verdict was contrary to the weight of the evidence with respect to whether the death resulted from a criminal act and (2) for the reasons hereinafter stated for the reversal and grand of a new trial on the manslaughter count.

With respect to the manslaughter count, we believe defendant was deprived of a fair trial and is entitled to a new one because of the following errors and improprieties:

(1) It was prejudicial error to permit the prosecutor to adduce testimony from Rorech, an important prosecution witness, that he had been given a sodium pentothal (truth serum) test (cf. People v. Neumuller, 29 A.D.2d 886, 288 N.Y.S.2d 511).

(2) It was prejudicial error to permit the prosecutor to disclose, through his cross-examination of defense witness Colabella, that Colabella had refused to sign a waiver of immunity when questioned by the prosecutor during the pretrial investigation of the case, since, under the circumstances of this trial, Colabella's refusal to sign such waiver may well have been considered by the jury as an indication of defendant's guilt (cf. People v. Ashby, 8 N.Y.2d 238, 203 N.Y.S.2d 854, 168 N.E.2d 672; United States v. Sing Kee, 2 Cir., 250 F.2d 236, cert. den. sub nom. Sing Kee v. United States, 355 U.S. 954, 78 S.Ct. 538, 2...