# People v. Coleman

> Appellate Division of the Supreme Court of the State of New York · February 27, 1964 · 20 A.D.2d 267

URL: https://www.frixlaw.com/law-library/cases/5748669

## Case

- **Full name:** The People of the State of New York v. Leroy V. Coleman
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** February 27, 1964
- **Citations:** 20 A.D.2d 267; 247 N.Y.S.2d 240; 1964 N.Y. App. Div. LEXIS 4285
- **Precedential status:** Published
- **Opinion:** Dissent by Noonan
- **Judges:** Noonan
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Noonan, J. (dissenting).
The defendant has been convicted of murder in the second degree. He was indicted for murder in the first degree in that “on January 7, 1962 he wilfully, feloniously and with malice aforethought did kill and murder Marlene Coleman by strangling her.” The victim was the estranged wife of the defendant. Thus as part of the corpus of the crime charged, the People were required to prove that the victim died as the result of strangulation. The County Medical Examiner and a pathologist testified as to examinations of the body each made. A hypothetical question was put to each of them which assumed as one of its hypotheses that the victim was strangled. Bach expressed the medical judgment and opinion based on this hypothesis that death was caused by asphyxia. Strangulation is not the only cause of asphyxia.
The only proof as to strangulation was in the form of alleged admissions of the defendant made to certain persons subsequent to the event. Section 395 of the Code of Criminal Procedure provides that such an admission can be given in evidence against an accused " but is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. ’ ’
True there is proof of threats to kill his wife made by the defendant prior to the event and also proof of flight by the defendant after the event. Such evidence does not, however, supply the additional proof required that the victim was in fact strangled. We are, therefore, constrained to require a new trial by reason of the assumption in the hypothetical questions of the fact which is the very essence of the charge specifically made in the indictment, namely that the defendant caused the victim’s death by “ strangling her ”.
The judgment of conviction should be reversed and a new trial granted.
Williams, P. J., Bastow and Henry, JJ., concur in Per Curiam opinion; Noonan, J., dissents and votes to reverse and to grant a new trial in an opinion in which Goldman, J., concurs.
Judgment affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5748669. Public record. Not legal advice.