People v. Peters , 3 A.D.2d 855 ( 1957 )

Appeal from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, convicting appellant of assault in the third degree and sentencing him to 60 days’ imprisonment, execution of which was suspended, and from said sentence. Judgment reversed on the law and the facts and information dismissed. Appellant’s guilt was not established beyond a reasonable doubt. During the trial the complainant, a mentally retarded 20-year-old girl, was permitted to be examined and cross-examined without being sworn. There is no provision in the Code of Criminal Procedure authorizing such practice. Complainant’s statement, therefore, was without probative value and was inadmissible. The testimony of the other witnesses did not, in our opinion, constitute the “additional proof that the crime charged has been committed” as required by section 395 of the Code of Criminal Procedure. (People v. Brasch, 193 N. Y. 46; People v. Guozzo, 292 N. Y. 85.) No separate appeal lies from the sentence, which has been reviewed on the appeal from the judgment of conviction. Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.