People State New York v. Frank J. Reynolds

[35 A.D.2d 529 Page 529] In our opinion it was prejudicial error to receive in evidence defendant's admissions to Detective Hayes and that part of
his statement to Patrolman Draghi which was made after defendant's attorney had advised him not to answer and had instructed
the police not to question him (People v. Vella, 21 N.Y.2d 249; People v. Arthur, 22 N.Y.2d 325, 329; People v. Baker, 23
N.Y.2d 307, 318-319; People v. Miles, 23 N.Y.2d 527, 542; People v. Paulin, 25 N.Y.2d 445). People v. McKie (25 N.Y.2d 19)
and People v. Kaye (25 N.Y.2d 139) are distinguishable on their facts; and the case at bar comes squarely within the holding
in Paulin (supra). We believe the trial court committed further prejudicial error when it refused defendant's request to charge
subdivision 3 of section 1052 of the former Penal Law (People v. Drislane, 8 N.Y.2d 67; People v. Heineman, 211 N. Y. 475).
On the record in this case we also believe it was improper for the prosecutor to impeach the testimony of an important defense
witness, Mrs. Bahit, as a recent fabrication, since it appears that the prosecutor and a police officer who sat with him at
the counsel table knew or had been apprised, long before the trial, that this witness had made a similar statement to the
police and others shortly after the crime was committed. Finally, we do not believe that the indictment should be dismissed
because of the claimed deprival of defendant's right to appear before the Grand Jury that indicted him, since (a) that right
does not accrue until the accused serves a formal request to appear and waives immunity and (b) this defendant did not comply
with those requirements (see Code Crim. Pro., § 250; People ex rel. Mleczko v. McCloskey, 33 Misc. 2d 175, affd. 16 A.D.2d
878; People v. Powell, 31 Misc. 2d 833; People v. Galarotti, 46 Misc. 2d 871; People v. Grossman, 35 Misc. 2d 488). Nevertheless,
we wish to note our disapproval of the prosecutor's conduct in this connection. When defendant was arraigned in the Nassau
County District Court, on the same day the homicide occurred (a Friday), the prosecutor requested and was granted an adjournment
to the following Wednesday. At that same arraignment, defense counsel notified the prosecutor, in open court, that he intended
to request an [35 A.D.2d 529 Page 530]