People v. Levine

• Decision Date: 08 January 1948
• Parties: PEOPLE v. LEVINE.
• Court: New York Court of Appeals Court of Appeals

297 N.Y. 144

77 N.E.2d 129

PEOPLE

v.LEVINE.

Court of Appeals of New York.

Jan. 8, 1948.

Appeal from Supreme Court, Appellate Division, Second Department.

Max Levine was convicted in the Nassau County Court, Collins, J., of burglary in the third degree, and he appealed to the Appellate Division. From a judgment of the Appellate Division, entered February 24, 1947, 69 N.Y.S.2d 336, affirming unanimously the County Court's judgment, the defendant, by permission of an associate judge of the Court of Appeals, appeals.

Judgments reversed and new trial ordered. Samuel Bader and Harry G. Anderson, both of New York City, for appellant.

James N. Gehrig, Dist. Atty., of Hempstead (Philip Huntington, of Glen Cove, of counsel), for respondent.

CONWAY, Judge.

The indictment upon which the defendant was tried contained three counts. The first charged a burglary of the home of one Schlossberg at Long Beach. The second and third counts were for the burglary of another home in Long Beach on the same day and the commission of petit larceny therein. The issues as to the breaking and entering of the homes and as to the identity of the offender were closely contested. Several errors are urged.

We shall first consider the failure of the District Attorney to open his case to the jury as required by subdivision 1 of section 388 of the Code of Criminal Procedure. That provides: ‘The jury having been impaneled and sworn, the trial must proceed in the following order:

‘1. The district attorney, or other counsel for the people, must open the case’.

The record discloses that the Assistant District Attorney addressed the jury as follows:

‘Members of the Jury, in the past, over a period of years, I have established or had established a custom to waive opening in the presentation of a criminal case so that we could get right down to the meat of the case and have the witnesses take the stand so you could get the first hand information without any attempt on my part to tell you what we are going to prove and to try to color the testimony in advance. But unfortunately for that habit or custom, the highest Court of this State, the Court of Appeal, had ruled that when a prosecutor presents a criminal case he cannot waive opening.

‘And so the nearest way that I can come to that old custom of mine is to read to you the indictment, and I am going to ask you at the close of the case that after we have proven the allegations contained in this indictment you bring in a verdict of guilty.

‘The People of the State of New York against Max Levine, Defendant. The Grand Jury of the County of Nassau by this indictment accuse the defendant of the crime of Burglary in the Third Degree, committed as follows: The said defendant Max Levine, on or about the 30th day of August, 1945, at the City of Long Beach, County of Nassau and State of New York, broke and entered the dwelling house of one Ben Schlossberg, located at 143 Belmont Avenue, Long Beach, Nassau County, New York, with intent to commit therein the crime of Larceny.’

The Assistant District Attorney then read the second and third counts of the indictment together with the date upon which the indictment was found and the name of the District Attorney signed thereto. That did not constitute an opening of the case within the meaning of section 388.

We had occasion to refer to this matter recently in People v. Romano, 279 N.Y. 392, 395, 18 N.E.2d 643, 635, where the District Attorney had been permitted to waive opening to the jury. We said ‘We cannot countenance this departure from long standardized forms of law in trials for felony. * * * While the reading of a detailed indictment might conceivably serve the purpose of an opening (cf. People v. Reilly, 49 App.Div. 218, 63 N.Y.S. 18; Id. 164 N.Y. 600, 59 N.E. 1128), we are not disposed to encourage even that procedure.’ An examination of the record in People v. Reilly (supra) discloses that there there was a considerably detailed indictment. Here the indictment contained but the name of the crime charged and the date upon which and the place where it was alleged to have been committed. The People urge that this error is not properly presented by objection. We pointed out in People v. McLaughlin, 291 N.Y. 480, 483, 53 N.E.2d 356, 357, that section...