People v. Mulvey

Wheeler, J. (dissenting).

Although I do not approve of the conduct of the Trial Judge in taking over and conducting extended cross-examination of defendant’s witnesses, or of his gratuitous statement relating to police procedure in considering a case closed after obtaining a signed statement admitting guilt, I cannot agree that there are any reasonable grounds to support a finding that appellant did not have a fair trial.

The criticisms upon which he relies as a basis for his contention that the trial court’s attitude was biased and hostile, are *543for the most part innocuous and, in some instances, undoubtedly provoked by the unorthodox conduct of defendant’s attorneys. In view of the strong proof of appellant’s guilt, none are so prejudicial as to require a reversal of the judgment.

Appellant’s alleged confession was offered and received after prolonged cross-examination of the two police officers who were present at the time the statement was taken. In view of the nature of the evidence later offered by the defense, it is inconceivable, had the Trial Judge received such evidence upon the preliminary examination, that he would have then rejected the confession.

If, in fact, error was committed in curtailing the preliminary examination before ruling upon the admissibility of the confession, it constituted an unsubstantial error under the circumstances here disclosed. The statute directs that where guilt is clearly established the court must disregard unsubstantial errors. (Code Crim. Pro., § 542; People v. Nunziato, 233 N. Y. 394; People v. Brasch, 193 N. Y. 46.)

The judgment of conviction should be affirmed.

All concur, except Wheeler, J., who dissents and votes for affirmance in a separate opinion. Present — McCurn, P. J., Vaughan, Kimball, Wheeler and Williams, JJ.

Judgment of conviction reversed on the law and facts and a new trial granted.