People v. Crimmins

• Decision Date: 05 May 1975
• Citation: 48 A.D.2d 663,367 N.Y.S.2d 532
• Parties: The PEOPLE, etc., Respondent, v. Alice CRIMMINS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 532

367 N.Y.S.2d 532

48 A.D.2d 663

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

Supreme Court, Appellate Division, Second Department.

May 5, 1975.

Lyon & Erlbaum, Kew Gardens, N.Y. (William M. Erlbaum, Kew Gardens, of counsel), for appellant.

Nicholas Ferraro, Dist. Atty., Kew Gardens (Thomas A. Duffy, Jr., Jackson Heights, of counsel), for respondent.

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

MEMORANDUM BY THE COURT.

This case has been remitted to us by the Court of Appeals. Defendant had appealed to us 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 murder and to a prison term of 5 to 20 years for 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.

We reversed the judgment as to the murder count, on the law and the facts, and dismissed that count, on the law; reversed the judgment as to the manslaughter count and granted a new trial as to that count, on the law; and dismissed, as moot, the appeal from the order denying a new trial; the Court of Appeals affirmed our determination with respect to the murder conviction; reversed it with respect to the manslaughter conviction and remitted the case to us for determination of the facts as to that conviction in conformity with CPL 470.40 (subd. 2, par. (b)); and pointed out that with such remission defendant becomes entitled to consideration and disposition of her appeal from the order denying her motion for a new trial (People v. Crimmins, 41 A.D.2d 933, 343 N.Y.S.2d 203, affd. in part and revd. in part 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975)).

We now affirm the conviction of manslaughter in the first degree and the order denying the motion for a new trial. No opinion.

HOPKINS, MUNDER and CHRIST, JJ., concur.

RABIN, Acting P.J., and MARTUSCELLO, J., dissent and vote to remand the case to the trial court for a plenary hearing on the motion for a new trial, with the following memorandum:

The motion was denied summarily without a hearing. The trial court held as to the first ground urged that the affidavits...