The opinion
BURKE, J., dissenting.
The two principal witnesses who testified for the People, Polakoff and Dubey, are self-confessed accomplices in the crime charged in the indictment. The story related by these witnesses is not corroborated by any credible evidence. The People failed to prove the defendant guilty beyond a reasonable doubt.
The court should have stricken the unresponsive answer of the defendant that he “never conspired with anybody.” On the basis of the unresponsive answer, the People were permitted to introduce the testimony of Alvin Stein as a rebuttal witness. This testimony was prejudicial to the defendant. I am of the opinion that the conduct of the State’s Attorney prejudiced the defendant’s right to a fair trial. The defendant was not indicted for murdering or conspiring to murder Sanford Lerner. In arguing to the jury, the Assistant State’s Attorney said: “We know that Dubey and we know that Polakoff didn’t kill Mr. Lerner on that date.” This was equivalent to telling the jury that Polakoff and Dubey killed Lerner on another date.
The judgment should be reversed.