
    The People of the State of New York, Respondent, v. Charles Hernandez and Manuel Ramirez, Appellants.
    Argued April 24, 1961;
    decided July 7, 1961.
    
      
      Jacob W. Friedman and Irving Mendelson for Charles Hernandez, appellant.
    
      Whitman Knapp, Robert F. Ambrose and Andrew von Hirsch for Manuel Ramirez, appellant.
    
      Frank S. Hogan, District Attorney (Richard G. Denzer of counsel), for respondent.
   Memorandum : The judgments should be affirmed. We do not hold that the rule stated in People v. Rosario (9 N Y 2d 286) is to be applied prospectively only, but in this case the error of the trial court in refusing the request of counsel for the defense to examine the Grand Jury minutes and pretrial statements of witnesses (which we have examined) was not so prejudicial as to require a reversal (Code Grim. Pro., § 542).

Fuld, J. (dissenting in part).

I believe that there should be a reversal of Ramirez’ conviction and a new trial as to him for the reasons given by Appellate Division Justice Eager in his dissenting opinion.

In brief, it is my view that evidence of the witness Walters ’ prior identification of Ramirez from the photograph was improperly received (see People v. Cioffi, 1 N Y 2d 70, 73) and that, in any event, the court erred in not charging the jury, as requested by the defense, that evidence of prior identification was not evidence in chief. There was, it is true, an identification of Ramirez by Walters at the trial, but we may not say that the error—acknowledged to be such by the majority of this court and of the Appellate Division — did not influence the jury to the prejudice of Ramirez. (See, e.g., People v. Ochs, 3 N Y 2d 54, 57; People v. Mleczko, 298 N. Y. 152, 162.)

Froessel, J. (dissenting in part as to defendant Ramirez).

I would agree with the majority, except for the new rule announced in People v. Rosario (9 N Y 2d 286), which overruled our prior holding in People v. Walsh (262 N. Y. 140), reaffirmed only 18 months ago in People v. Bai (7 N Y 2d 152, 155). I cannot agree that Rosario should in effect have prospective application only, for that would be both illogical and, under Rosario, unjust.

If, as the majority said in Rosario, “ a right sense of justice entitles the defense to examine a witness’ prior statement, whether or not it varies from his testimony on the stand ” (p. 289; emphasis supplied), we are not authorized to withhold that right from defendants in pending cases coming before us, under section 542 of the Code of Criminal Procedure or otherwise.

We do not make the law—we declare the law. Having-declared the law in Rosario, overruling Walsh, defendants are now entitled to the benefit of the Rosario rule in all pending cases coming before us. (People ex rel. Rice v. Graves, 270 N. Y. 498, affg. 242 App. Div. 128.) This is so particularly in criminal cases where the change is “ ameliorative ” (People v. Oliver, 1 N Y 2d 152).

It is no answer to say that we will examine the prior statements to ascertain if there was inconsistency and prejudice, for we would then be following the Walsh rule again, which Rosario overruled as inconsistent with “ a right sense of justice ”. We cannot have two rules, one for the trial court and another for us, and yet that is precisely what the court is sanctioning*. Nor may we resort to section 542 of the Code of Criminal Procedure, since violation of the Rosario rule can hardly be called a “ technical error ”, not affecting a substantial right.

Only because I am bound by the majority decision in Rosario do I feel constrained to reverse here as to Ramirez.

Chief Judge Desmond (dissenting).

I vote to reverse and grant a new trial as to both defendants on the ground that the showing as to a felony being in progress at the time of the killing is too confused, contradictory and uncertain to constitute proof which should satisfy a jury.

Judges Dye, Van Voorhis, Burke and Foster concur in Memorandum; Judges Fuld and Froessel dissent and vote to reverse as to defendant Ramirez in separate opinions; Chief Judge Desmond dissents and votes to reverse as' to both defendants in an opinion.

Judgments affirmed.  