Opinion
Argued March 23, 1977
Decided May 12, 1977
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH JIUDICE, J.
John R. King, District Attorney (Bridget R. Rahilly of counsel), for appellant.
Robert G. Morvillo and Betty J. Santangello for respondent.
Order affirmed on the opinion by Mr. Justice SAMUEL RABIN at the Appellate Division ( 52 A.D.2d 499).
Concur: Chief Judge BREITEL and Judges GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE. Judge JASEN dissents and votes to reverse in the following memorandum: I would reverse the order of the Appellate Division and reinstate the judgment of conviction for the crime of sexual abuse in the first degree for the reasons stated in the opinion by Judge JOSEPH JIUDICE of the Dutchess County Court. I also agree with so much of the dissenting opinion by Mr. Justice JAMES D. HOPKINS at the Appellate Division as states that the doctrine of the taint of the poisonous tree should not be extended to include evidence of the personal observation by a police officer of a crime committed in his presence.