People v. Bennett (35 A.D.2d 944, 1970)

Concur — Eager, J. P., Markewich, Steuer and Bastow, JJ.; McGivern, J., dissents in the following memorandum: With deference to the majority, I must dissent on the precedent of People v. Rivera, 26 N Y 2d 304 (revg. this court, 32 A D 2d 770). The same point is involved, to wit, the inadvertent disclosure of a past criminal record. In Rivera, a new trial was deemed warranted even though it was unclear the intelligence ever came to the jury’s notice. Here, there is no doubt from the record that the knowledge was brought home to the jury. A fortiori, the judgment herein must be reversed and a new trial ordered as in Rivera. The fact “ honest error ” was committed does not derogate from the rudimentary and serious quality of the error, requiring a new trial. (See, also, People v. Wiggins, 30 App. Div. 948, 949.) Moreover, I am troubled by grave doubts as to this defendant’s sanity at the time of trial. (See People v. Frampton, 31 A D 2d 551.)