SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
December 12, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
HARLAN W. EATON, APPELLANT
Appeal from judgment of Cattaraugus County Court convicting defendant of rape, second degree.
Bastow, P. J., Goldman, Del Vecchio, Witmer and Henry, JJ.
Memorandum: We recognize it was error to prevent the witness Jennings from testifying that he did not observe defendant on the premises where the crime was committed on the evening in question. He was not an alibi witness subject to the requirement of section 295-1 of the Code of Criminal Procedure. However, in view of the four alibi witnesses who did testify, and whose testimony was rejected by the jury, we do not believe Jennings' testimony, if received, would have varied the result of the jury's deliberations. In this circumstance, and upon all the evidence before us, the sufficiency of which is not challenged by defendant, we believe the error was a harmless one which should be disregarded under section 542 of the Code of Criminal Procedure.
Judgment unanimously affirmed.
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