People v. Hernandez

• Court: New York Court of Appeals
• Writing for the Court: FULD; FROESSEL; DESMOND; DESMOND
• Citation: 10 N.Y.2d 774,219 N.Y.S.2d 617,177 N.E.2d 56
• Decision Date: 07 July 1961
• Parties: , 177 N.E.2d 56 PEOPLE of the State of New York, Respondent, v. Charles HERNANDEZ and Manuel Ramirez, Appellants.

Page 617

219 N.Y.S.2d 617 10 N.Y.2d 774, 177 N.E.2d 56 PEOPLE of the State of New York, Respondent,
v.
Charles HERNANDEZ and Manuel Ramirez, Appellants. Court of Appeals of New York. Argued April 24, 1961.
Decided July 7, 1961.

[10 N.Y.2d 776] Jacob W. Friedman and Irving Mendelson, New York City, for Charles Hernandez, appellant.

Whitman Knapp, Robert F. Ambrose and Andrew von Hirsch, New York City, for Manuel Ramirez, appellant.

Frank S. Hogan, Dist. Atty., New York City (Richard G. Denzer, New York City, of counsel), for respondent.

MEMORANDUM.

The judgments should be affirmed. We do not hold that the rule stated in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, is to be applied prospectively only, but in this case the error of the trial court in refusing the request of counsel for the defense to examine the Grand Jury minutes and pretrial statements of witnesses (which we have examined) was not so prejudicial as to require a reversal (Code Cr.Proc. § 542).

Page 618

FULD, Judge (dissenting in part).

I believe that there should be a reversal of Ramirez' conviction and a new trial as [177 N.E.2d 57] to him for the reasons given by Appellate Division Justice Eager in his dissenting opinion.

In brief, it is my view that evidence of the witness Walters' prior identification of Ramirez from the photograph was improperly received (see People v. Cioffi, 1 N.Y.2d 70, 73, 150 N.Y.S.2d 192, 194, 133 N.E.2d 703, 704) and that, in any event, the court erred in not charging the jury, as requested by the defense, that evidence of prior identification was not evidence in chief. There was, it is true, an identification of Ramirez by Walters at the trial, but we may not say that the error acknowledged to be such by the majority of this court and of the Appellate Division did not influence the jury to [10 N.Y.2d 777] the prejudice of Ramirez. See, e. g., People v. Ochs, 3 N.Y.2d 54, 57, 163 N.Y.S.2d 671, 673, 143 N.E.2d 388, 389; People v. Mleczko, 298 N.Y. 153, 162, 81 N.E.2d 65, 69

FROESSEL, Judge (dissenting in part as to defendant Ramirez).

I would agree with the majority, except for the new rule announced in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, which overruled our prior holding in People v. Walsh, 262 N.Y. 140, 186 N.E. 422, reaffirmed only 18 months ago in People v. Bai, 7 N.Y.2d 152, 155, 196 N.Y.S.2d 87, 89, 164 N.E.2d 387, 389. I cannot agree that Rosario should in effect have prospective...