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People v. Rodriques

53 Misc. 2d 648 Court Supreme Court, Appellate Term, First Department, Decision date 1967-02-16 English

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p. 648
The People of the State of New York, Respondent, v. Elieser Rodriquez (also Known as Elieses Rodriques), Appellant.
Supreme Court, Appellate Term, First Department,
February 16, 1967.
Samuel Singer for appellant. Frank S. Hogan District Attorney (Malvina H. Guggenheim of counsel), for respondent.

The admission in evidence of wooden slabs of a park bench on a charge of section 975 of the Penal Law was error. People v. Wolosky ( 296 N. Y. 236 , 239) has established that possession of policy slips or similar articles in a criminal statute ‘ ‘ means something more than making marks on another man’s wall. ’ ’ In that case the marks were made on a marble slab affixed to the wall of a building. Here, the marks were made on wooden slabs of a park bench. The conclusion is the same in either case.

However, the use of the slabs as proof of the violation of section 974 of the Penal Law was proper.

The judgment of conviction under section 975 of the Penal Law should be reversed on the law and on the facts and the complaint dismissed; judgment of conviction under section 974 of the Penal Law is affirmed.

Concur — Streit, J. P., Hofstadter and Tilzer, JJ.

Judgment reversed in part and affirmed in part.

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