People v. Spitaleri

• Decision Date: 05 July 1960
• Citation: 11 A.D.2d 785,205 N.Y.S.2d 175
• Parties: PEOPLE of the State of New York, Respondent, v. Charles Angelo SPITALERI, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 175

205 N.Y.S.2d 175

11 A.D.2d 785

PEOPLE of the State of New York, Respondent, v. Charles Angelo SPITALERI, Appellant.

Supreme Court, Appellate Division, Second Department.

July 5, 1960.

Wm. E. Willis, New York City, for appellant. Wm. J. Nicoson, New York City, of counsel.

Frank D. O'Connor, Dist. Atty., Long Island City, for respondent. Howard D. Stave, New York City, of counsel.

Before NOLAN, P. J., and BELDOCK, UGHETTA, KLEINFELD and PETTE, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Queens County, rendered May 16, 1958, convicting him of violating subdivision 2 of section 1751 of the Penal Law, and sentencing him to serve from 5 to 10 years.

Judgment affirmed. No opinion.

NOLAN, P. J., and BELDOCK and UGHETTA, JJ., concur.

KLEINFELD and PETTE, JJ., dissent and vote to reverse the judgment and to order a new trial, with the following memorandum:

In our opinion, it was error, warranting reversal and a new trial, to admit over defendant's objections, as part of the People's direct case, evidence that defendant had pleaded guilty to an attempt to commit the crime charged, and, with the court's consent, had withdrawn such guilty plea and substituted a plea of not guilty (Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; cf. People v. Steinmetz, 209 App.Div. 83, 204 N.Y.S. 349, affirmed 240 N.Y. 411, 148 N.E. 597; People v. Ariano, 264 App.Div. 426, 428, 35 N.Y.S.2d 818, 819).