People v. Kohilakis
| Decision Date | 20 January 1966 |
| Citation | 49 Misc.2d 213,267 N.Y.S.2d 348 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. John KOHILAKIS, Defendant. |
| Court | New York District Court |
George J. Aspland, Dist. Atty., Lloyd A. Feuer, Asst. Dist. Atty., for the People.
Vincent J. Hand, Bay Shore, for defendant.
The defendant was charged and tried before this Court without a jury for committing the crime of assault in the third degree, a misdemeanor, in violation of Section 244, Subdivision 1 of the Penal Law of the State of New York by reason of striking and hitting the complainant on his head and left ear with a cement block knocking him to the ground without just cause or provocation.
At the conclusion of the trial the attorney for the defendant made two motions. First, that the charge herein be dismissed on the ground that the people have failed to make an opening statement as required by Section 388, Subdivision 1 of the Code of Criminal Procedure; and Secondly, that the People have failed to prove and establish that the defendant is guilty of the crime charged beyond a reasonable doubt.
Section 388, Subdivision 1, supra, provides as follows:
A simple reading of the Section clearly indicates by its very terms that it is only applicable to trials before a jury. The purpose of an opening statement is to give the jury a prevue of the issues for their further understanding and to allow them to more intelligently follow the evidence that is adduced at the trial. In the instant case the trial was without a jury so the requirement of Section 388, Subdivision 1, enunciating that an opening statement is necessary to be made to a jury has no application. This Court could have in its discretion required an opening statement, but did not do so because it felt that none was required. Nor did defendant request that the People make such opening statement. An examination of law applicable to this subject enunciates that in a non-jury case the People are not required to comply with the provisions of Section 388, Subdivision 1. See People v. Duskin, 11 Misc.2d 945 174 N.Y.S.2d 527, People v. Macomb, 9 Misc.2d 1027, 174 N.Y.S.2d 330, 331.
In the case of the People v. Del Principe, 37 Misc.2d 428, at page 432, 234 N.Y.S.2d 874, at page 879, the court enunciates 'The...
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State v. Himel
...It was evident under the former law of New York, Code of Criminal Procedure Section 388, and the cases so held, People v. Kohilakis, 49 Misc.2d 213, 267 N.Y.S.2d 348; People v. Del Principe, 37 Misc.2d 428, 234 N.Y.S.2d 874, that an opening statement was not required in non-jury cases. New ......
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People v. Rivara
...and appreciate its connection and bearing upon the case' (People v. Benham, 160 N.Y. 402, 434, 55 N.E. 11, 21; see People v. Kohilakis, 49 Misc.2d 213, 267 N.Y.S.2d 348). We hold therefore that the opening may be waived in a nonjury trial and that a waiver did occur at bar. Defense counsel ......