SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 10, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
WILLIAM MCKINNEY, APPELLANT
Concur -- Steuer, J. P., Tilzer and McNally, JJ.; Capozzoli and Rabin, JJ., dissent.
In this non-jury trial of a youthful offender, we are of the opinion that defendant's guilt was clearly established beyond a reasonable doubt. The testimony challenged by the dissent first came about as part of the narration of the assault on the complaining witness. She was pregnant by defendant and was stabbed in the abdomen by him. She also described the knife with which she was stabbed and the first time she saw it in defendant's possession. In any event, the testimony was not prejudicial. We do not believe that it affected the substantial rights of defendant. Consequently, we affirm under section 542 of the Code of Criminal Procedure.
Judgment of conviction affirmed.
Rabin, J. (dissenting). I dissent and vote to reverse the judgment of conviction and would order a new trial. This defendant was convicted of assault. The Trial Judge, over objection, allowed the introduction of testimony of prior assaults and attempted assaults by the defendant. I believe that reversible error. I cannot conclude that such error was not prejudicial. Accordingly, I would reverse and order a new trial. Capozzoli, J., concurs in the dissent by Rabin, J., for the further reason that the People were erroneously allowed to prove an assault against a third person.
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