People v. Rudish
| Court | New York Court of Appeals |
| Citation | 294 N.Y. 500,63 N.E.2d 77 |
| Parties | PEOPLE v. RUDISH. |
| Decision Date | 19 July 1945 |
294 N.Y. 500
63 N.E.2d 77
PEOPLE
v.
RUDISH.
Court of Appeals of New York.
July 19, 1945.
Appeal from Kings County Court.
On reargument.
Judgment of conviction reversed and a new trial ordered.
For former opinion, see 292 N.Y. 360, 55 N.E.2d 353.
Appeal from a judgment of the Kings County Court (Liebowitz, J.) rendered July 19, 1943, upon a verdict convicting defendant of the crime of murder in the first degree. The appeal was first argued on January 17, 1944, together with an appeal by Morris Malinski from a judgment of the same court rendered upon a verdict convicting defendant Malinski of the same crime. On April 20, 1944, the Court of Appeals rendered a decision affirming the judgment of conviction as to both defendants. See People v. Malinski, 292 N.Y. 360, 55 N.E.2d 353. Thereafter, on an appeal to the United States Supreme Court the judgment against Malinski was reversed and the judgment against Rudish was affirmed. In its prevailing opinion the Supreme Court stated: ‘Whether our reversal of the judgment against Malinski would as a matter of state law affect the judgment against Rudish is not for us to say. In each case our mandate will provide for a remand to the Court of Appeals for proceedings not inconsistent with this opinion.’ See 324 U.S. 401, 65 S.Ct. 781, 787. A subsequent motion by defendant Rudish for a reargument in the Court of Appeals of his appeal was granted on May 17, 1945. See 294 N.Y. 809, 62 N.E.2d 240.
LEWIS and CONWAY, JJ., dissenting.
[63 N.E.2d 77]
John J. Fitzgerald, of Brooklyn, for appellant.
William O'Dwyer, Dist. Atty., of Brooklyn (Henry J. Walsh and Thomas Cradock Hughes, both of Brooklyn, of counsel), for respondent.
PER CURIAM.
Upon this reargument we assume that the evidence against Rudish was sufficient and that as to him no error of law was committed upon the trial. Nevertheless, since the Supreme Court of the United States directed a new trial as to Malinski because one of his confessions was inadmissible, the defendant Rudish should, in the interest of justice, receive a new trial with that confession excluded.
The judgment of conviction should be reversed and a new trial ordered.
LEHMAN, C. J., and LOUGHRAN, DESMOND, THACHER, and DYE, JJ., concur.
LEWIS and CONWAY, JJ., dissent on the ground that the decision on this reargument should await the retrial of People v. Malinski.
Judgment of conviction reversed, etc.
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