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PEOPLE STATE NEW YORK v. SEBASTIAN ROSSILLI (07/01/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 1, 1968

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
SEBASTIAN ROSSILLI, APPELLANT

Christ, Acting P. J., Brennan, Rabin, Munder and Martuscello, JJ., concur.

We have examined the many points raised by defendant on this appeal and find them to be without merit. With respect to the constitutionality of section 8 of the Code of Criminal Procedure, we feel bound by People v. Qualey (210 N. Y. 202). It must be noted, however, that the use of the full transcript of an identification witness' testimony in the pretrial felony hearing pursuant to section 8 of the Code of Criminal Procedure did inject one harmless and non-prejudicial error into the jury's consideration of the case. The pretrial cross-examination of that witness had a reference in it to defendant being arrested on another unrelated robbery charge. The manner in which this reference was originally elicited, the use by defendant of alibi witnesses who referred to the arrest, the strong proof of guilt and the freedom of other error in the trial make the application of section 542 of the Code of Criminal Procedure appropriate in this case.

Disposition

Judgment of the County Court, Nassau County, rendered March 22, 1967, affirmed.

19680701

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