p. 168The People of the State of New York, Respondent, v. William Meckler, Appellant.decided October 31, 1963.
p. 169Robert P. Roche and Nathan M. Medwin for appellant.
I. There was no opening statement made by the prosecution in accordance with the absolute requirements of section 388 of the Code of Criminal Procedure. (People v. Romano, 279 N. Y. 392 ; People v. Robinson, 5 Misc 2d 176 .) II. The testimony of the Deputy Sheriff and jailer that the accused had told him after arraignment and while in his custody in the Schenectady County Jail that he had been drinking, particularly so after interrogation, was inadmissible and violative of defendant’s constitutional rights. (People v. Meyer, 11 N Y 2d 162 .) III. The trial court failed in the charge to summarize or marshal the evidence or to ‘ ‘ outline ’ ’ the several contentions by the parties. (People v. Kenda, 3 A D 2d 80 ; People v. Tisdale, 18 A D 2d 274 .) IV. The trial court committed error in the refusal to charge the requests made by defendant on the question of circumstantial evidence. (People v. Carpenito, 292 N. Y. 498 ; People v. Weiss, 290 N. Y. 160 ; People v. Woltering, 275 N. Y. 51 .) V. It is respectfully submitted that the statute directing an appellate court to disregard technical errors not affecting substantial rights does not mean that a court should regard errors as technical however grave they may be upon the hypothesis that in any event the jury correctly decided the case. (People v. Garcia, 7 A D 2d 492 ; People v. Wilkie, 286 App. Div. 835 ; People v. Carborano, 301 N. Y. 38 .)
p. 170D. Vincent Cerrito, District Attorney (Howard A. Levine of counsel), for respondent.
I. There was at most only a technical irregularity in the order of opening statements and swearing in the jury; the failure to object at the trial or in the affidavit of errors forecloses defendant’s objections here. (People v. Levine, 297 N. Y. 144 ; People v. De Camp, 57 Hun 591 ; People v. Farley, 252 App. Div. 811 ; People v. Kruger, 302 N. Y. 447 ; People v. Klein, 7 N Y 2d 264 ; People v. Feld, 305 N. Y. 322 ; People v. Lamm, 292 N. Y. 224 ; People v. Pindar, 210 N. Y. 191 .) II. The admissions made by defendant to the Deputy Sheriff were not “ testimonial compulsion” under the Meyer case; defendant has waived the objection because it was not raised at the trial nor in the affidavit of errors. (People v. Meyer, 11 N Y 2d 162 ; People v. Berry, 16 A D 2d 790 ; People v. Barnes, 295 N. Y. 979 ; People v. Boodie, 12 N Y 2d 963 .) III. The court was correct in denying the requested circumstantial evidence charge. (Holland v. United States, 348 U. S. 121 ; People v. Belcher, 302 N. Y, 529 ; People v. Koch, 250 App. Div. 623 ; People v. Bonifacio, 190 N. Y. 150 ; People v. Bretagna, 298 N. Y. 323 .)The judgment should be reversed and a new trial ordered.
Defendant’s conviction for driving while in an intoxicated condition must be reversed and a new trial ordered because of the prosecutor’s conduct during his closing argument to the jury. In summing up, the District Attorney not only characterized defendant as a gambler when the evidence did not support this accusation, but indulged in an irrelevant appeal to local prejudice as well. At the conclusion of the prosecution’s argument, defendant moved for a directed verdict of acquittal on the summation and excepted to the court’s denial of his motion. On this record we deem the question properly preserved for our review (cf. People v. Huberto, 10 N Y 2d 428 ).
The other points raised by defendant are beyond the scope of our consideration since defendant failed to preserve them for review below.
Chief Judge Desmond and Judges Dr®, Fuld, Van Voorhis, Burke and Foster concur.
Judgment reversed, etc.