People v. Nisonoff

• Decision Date: 30 December 1944
• Citation: 293 N.Y. 597,59 N.E.2d 420
• Parties: PEOPLE v. NISONOFF et al.
• Court: New York Court of Appeals Court of Appeals

293 N.Y. 597

59 N.E.2d 420

PEOPLE

v.NISONOFF et al.

Court of Appeals of New York.

Dec. 30, 1944.

Appeal from Supreme Court, Appellate Division, First Department.

Joseph Nisonoff and Max J. Weinstein were convicted of manslaughter in the first degree. From a judgment of the Appellate Division of the Supreme Court entered January 28, 1944, 267 App.Div. 356, 45 N.Y.S.2d 854, unanimously affirming judgments of the Bronx County Court (Patterson, J.) rendered upon a verdict convicting each of the defendants of the crime of manslaughter in the first degree, the defendants appeal by permission of the Chief Judge of the Court of Appeals.

Judgment affirmed.

See also 181 Misc. 696, 50 N.Y.S.2d 420. Harry G. Anderson and Joseph H. Stein, both of New York City, for Joseph Nisonoff, appellant.

Louis Susman and Hyman Roffe, both of New York City, for Max J. Weinstein, appellant.

Samuel J. Foley, Dist. Atty., of New York City (George Tilzer, Herman J. Fliderblum, Francis X. O'Brien, and Harry E. O'Donnell, all of New York City, of counsel), for respondent.

CONWAY, Judge.

The defendants were convicted of the crime of manslaughter in the first degree. The indictment charged that they, acting in concert with another, had willfully and wrongfully used and employed a certain instrument upon a woman pregnant with child, in order to procure a miscarriage, without any necessity to preserve her life and by the use of such instrment inflicted mortal wounds which resulted in her death.

There is but one question presented for our consideration, and that is whether it was error to admit in evidence the autopsy findings of the Assistant Medical Examiner who had died prior to the trial of appellants. That has become important because of a constitutional amendment which became effective on January 1, 1939. Prior to that amendment there would have been no question as to the admissibility of the findings, for the right of the accused to be confronted with the witnesses against him was a matter of statute, Code Crim. Proc., s 8; Civil Rights Law, s 12, Consol.Laws, c. 6, and both the common law and other statutes permitted their introduction in evidence. Civil Practice Act, ss 367, 374-a. By the constitutional amendment of 1938, the right of confrontation was written into article I, section 6. The question is whether that made the autopsy findings inadmissible, in view of the death of the reporting official.

The autopsy was performed on November 18, 1942, by the Assistant Medical Examiner. While he was performing the autopsy, he dictated his findings to a stenographer and typist attached to the office of the Medical Examiner. They were subsequently transcribed and a report prepared which was signed by the Assistant Medical Examiner and filed in the office of the Medical Examiner. So much of the report as contained the findings was offered and receipted in evidence. The opinion contained in the report was not offered. The Chief Medical Examiner was called to give opinion testimony as to the cause of death, based upon those findings.

New York City Charter, sections 874, 875, provide that an Assistant Medical Examiner must be a ‘doctor of medicine and a skilled pathologist and microscopist.’ It has not been argued here that the Assistant Medical Examiner did not possess those statutory qualifications.

Section 879 of the Charter provides: ‘It shall be the duty of the chief medical examiner to keep full and complete records in such from as may be provided by law. The chief medical examiner shall promptly deliver to the appropriate district attorney copies of all records relating to every death as to which there is, in the judgment of the medical examiner in charge, any indication of criminality, and such records shall not be open to public inspection.’

Section 878-3.0 of the Administrative Code of the City of New York provides: ‘If the cause of such death shall be established beyond a reasonable doubt, the medical examiner in charge shall so report to his office. If, however, in the opinion of such medical examiner, an autopsy is necessary, the same shall be performed by a medical examiner. A detailed description of the findings written during the progress of such autopsy and the conslusions drawn therefrom shall thereupon be filed in his office.’

Section 879-1.0 of the Administrative Code provides: ‘Records shall be kept in the office of the chief medical examiner, properly indexed, stating the name, if known, of every person dying under the circumstances described in section eight hundred seventy-eight of the charter, the place where the body was found and the date of death. To the record of each case shall be attached the original report of the medical examiner and the detailed findings of the autopsy, if any. The appropriate district attorney and the police commissioner of the city may require from the chief medical examiner such further records, and such daily information, as they may deem necessary.’

Civil Practice Act, section 367, now provides, and so provided prior to the adoption of our Constitution of 1938, as follows: ‘Certificate of officer as evidence of facts. Where a public officer is required or authorized, by special provision of law, to make a certificate or an affidavit touching an act performed by him, or to a fact ascertained by him, in the course of his official duty; and to file or deposit it in a public office of the state; the certificate or affidavit so filed or deposited, or an exemplified copy thereof, is presumptive evidence of the facts therein alleged, except where the effect thereof is declared or regulated by special provision of law.’

The right of confrontation imports and confers the right of cross-examination. When that right was added to our State Constitution, there was eliminated the possibility of its deprivation by legislative act. When we interpret that addition to the Constitution, we must do so in the light of the law as it existed at the time of the change. Any exceptions to the right of confrontation or cross-examination existing prior to the adoption of the State constitutional provision and not contrary to its spirit, must be respected. Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409. In that case, speaking of the Constitution of the United States, the court used the following language (page 243 of 156 U.S.,page 340 of 15 S.Ct.,39 L.Ed. 409), which is particularly applicable here: ‘We are bound to interpret the constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject, such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a bill of rights are subject to exceptions, recognized long before the adoption of the constitution,...