Opinion
Reargued June 12, 1945.
Decided July 19, 1945
Appeal from the Kings County Court, LEIBOWITZ, J.
John J. Fitzgerald for appellant.
William O'Dwyer, District Attorney ( Henry J. Walsh and Thomas Cradock Hughes of counsel), for respondent.
Upon this reargument we assume that the evidence against Rudish was sufficient and that as to him no error of law was committed upon the trial. Nevertheless, since the Supreme Court of the United States directed a new trial as to Malinski because one of his confessions was inadmissible, the defendant Rudish should, in the interest of justice, receive a new trial with that confession excluded.
The judgment of conviction should be reversed and a new trial ordered.
LEHMAN, Ch. J., LOUGHRAN, DESMOND, THACHER and DYE, JJ., concur; LEWIS and CONWAY, JJ., dissent on the ground that the decision on this reargument should await the retrial of People v. Malinski.
Judgment of conviction reversed, etc.