Majority
p. 500The People of the State of New York, Respondent, v. Sidney Rudish, Appellant. Reargued June 12, 1945; decided July 19, 1945.
p. 501As Malinski must be retried, Rudish should also be given a new trial. (Code Crim. Proc., § 528; People v. Munroe, 190 N. Y. 435 ; People v. Weiss, 290 N. Y. 160 ; People v. Ligouri, 284 N. Y. 309 ; People v. Peller, 291 N. Y. 438 .) Upon the facts and under the law a new trial is not called for. (People v. Feolo, 282 N. Y. 276 ; People v. Clougher, 246 N. Y. 106 ; People v. Malinski, 292 N. Y. 360 ; Ashcraft v. Tennessee, 322 U. S. 143 .)
John J. Fitzgerald for appellant.
William O’Dwyer, District Attorney (Henry J. Walsh and Thomas Cradock Hughes of counsel), for respondent.
Upon this reargument we assume that the evidence against Eudish 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 Eudish 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, Ch. J., 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.
Cases cited
- People v. Weiss 290 N. Y. 160 p. 501
- People v. Ligouri 284 N. Y. 309 p. 501
- People v. Peller 291 N. Y. 438 p. 501
- People v. Feolo 282 N. Y. 276 p. 501
- People v. Clougher 246 N. Y. 106 p. 501
- People v. Malinski 292 N. Y. 360 p. 501
- Ashcraft v. Tennessee 322 U. S. 143 p. 501