People v. Leviton , 3 A.D.2d 837 ( 1957 )

Appeal from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting appellant of endangering the health and morals of a child and of assault in the third degree. Judgment affirmed. No opinion. Nolan, P. J., Wenzel, Hallinan and Kleinfeld, JJ., concur; Murphy, J., dissents and votes to reverse the judgment and to dismiss the information, with the following memorandum: As early as September, 1952 appellant’s stepdaughter, then nine and one-half years old, denied to her mother that appellant had exposed himself to her. It was not until September 7, 1954, two years later, that the information against appellant was made and filed—obviously an inordinate delay. The trial did not take place until January, 1955. Meanwhile appellant’s wife, the child’s mother, had brought an action for divorce in which she charged appellant with having committed adultery with said daughter. She did not prevail in the divorce action, and continued to live with appellant long after 1952, when the offenses charged in the information were allegedly committed, of which offenses she had knowledge at that time. Her animus against appellant is unmistakable; her delay is incomprehensible, and her influence over her daughter is obvious.