SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 22, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
HARRY WEIS, APPELLANT
Christ, Acting P. J., Rabin, Benjamin and Munder, JJ., concur; Martuscello, J., concurs.
In the circumstances, peculiar to this case, we think that Weis' motion for a separate trial should have been granted (cf. Bruton v. United States 391, U. S. 123).
Martuscello, J., concurs, with the following memorandum:
I vote for reversal and a new trial for the reasons set forth in the majority's memorandum and also because the trial judge erred when, over objection by appellant, Weis, he (1) allowed into evidence the "hush puppy" shoes and the fishing knife and (2) permitted Weis' wife, as a witness for the People, to testify to a conversation had with the co-defendant, Maselli, on March 18, 1966. The errors thus committed were prejudicial. They are more fully discussed in my dissenting memorandum in People v. Maselli (30 A.D.2d 871).
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