People v. Evans

Decision Date31 March 1960
Citation200 N.Y.S.2d 72,7 N.Y.2d 1030
Parties, 166 N.E.2d 861 PEOPLE, etc., Appellant, v. John EVANS, Respondent.
CourtNew York Court of Appeals Court of Appeals

Appeal from Court of Special Sessions of the City of New York, Appellate Part, Second Department, 19 Misc.2d 1071, 192 N.Y.S.2d 144.

Defendant was convicted under Subdivision 8 of Section 722 of the Penal Law, Consol.Laws, c. 40, making one guilty of disorderly conduct who frequents or loiters about any public place soliciting men for purpose of committing a crime against nature or other lewdness. Judgment was entered, and the defendant appealed.

The Court of Special Sessions of the City of New York, Appellate Part, Second Department, Benjamin Gassman, P. J., reversed the judgment, dismissed the complaint, ordered that fine be remitted, and held that evidence was insufficient to show that defendant entertained any intent to breach the peace when defendant allegedly solicited police officer in men's room in bus terminal.

The People of the State of New York appealed to the Court of Appeals, and motion was made in the Court of Appeals for enlargement of time.

The Court of Appeals, 7 N.Y.2d 923, 197 N.Y.S.2d 726, granted motion for enlargement of time and set the case down for argument during the February, 1960, session of the Court of Appeals.

The People of the State of New York contended in the Court of Appeals that the Court of Special Sessions, Appellate Part, was in error when it reversed the judgment of conviction of defendant, and that the trial court was correct in denying motion for new trial on grounds of newly discovered evidence.

Frank D. O'Connor, Long Island City (Howard D. Stave, New York City, of counsel), for appellant.

Order reversed and a new trial ordered (People v. Lopez, 7 N.Y.2d 825, 196 N.Y.S.2d 702; People v. Liebenthal, 5 N.Y.2d 876, 182 N.Y.S.2d 26).

All concur except FULD, VAN VOORHIS and FOSTER, JJ., who dissent and vote to affirm upon the ground that the testimony offered on behalf of the People is incredible as a matter of law.

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