People v. Weissler , 24 A.D.2d 466 ( 1965 )

Appeal by defendant from a judgment of the former Court of Special Sessions of the City of New York, Queens County, rendered November 10, 1961 after a non jury trial, convicting him of a violation of section 555 of the Penal Law, and imposing sentence. Judgment reversed on the law and the facts, information dismissed, and defendant discharged. In our opinion the defendant’s guilt of the crime charged was not established beyond a reasonable doubt. Christ, Acting P. J., Rabin and Benjamin, JJ., concur; Hopkins and Hill, JJ., dissent and vote to affirm the judgment with the following memorandum: The identification of the defendant’s voice on the telephone was admissible (People v. Dunbar Contr. Co., 215 N. Y. 416; People v. Strollo, 191 N. Y. 42; People v. McDonald, 177 App. Div. 806). The weight of such evidence and the credibility of the witnesses were matters for the determination of the trial court with whose conclusion we should not interfere (People v. Gaimari, 176 N. Y. 84; People v. Atlas, 183 App. Div. 595). The statute (Penal Law, § 555) is not void and unconstitutional on account of vagueness and indefinitiveness (cf. People v. Harvey, 307 N. Y. 588; Duncan v. United States, 48 F. 2d 128, cert. den. 283 U. S. 863; Ann., 48 A. L. R. 83).