
303 N.Y. 791 (1952)
The People of the State of New York, Respondent,
v.
Bernard Stein, Appellant.
Court of Appeals of the State of New York.
Reargued December 5, 1951.
Decided January 17, 1952
Henry A. Lowenberg for appellant.
Frank S. Hogan, District Attorney (Richard G. Denzer and Jack M. Cotton of counsel), for respondent.
Concur: LOUGHRAN, Ch. J., LEWIS, DESMOND, DYE, FULD and FROESSEL, JJ. Dissent: CONWAY, J.
Upon the reargument of the appeal upon the ground of newly discovered evidence: Judgment of conviction affirmed; no opinion.
CONWAY, J., dissents in the following memorandum:
After considering the testimony received on the motion for a new trial made upon the ground of newly discovered evidence, I am confirmed in what I wrote when the case was here originally. (302 N.Y. 915.) The crucial issue is a matter of identity. The evidence of identity is not of such weight and credibility as to convince me that the jury was justified in finding the defendant guilty beyond a reasonable doubt.
I also think that a reading of the testimony of the witness Sherf on the question of identity discloses that the zeal of the trial court in seeking to assist in exploring the facts resulted in depriving the defendant of a fair trial.
I, therefore, vote to reverse the judgment and grant a new trial. [See 302 N.Y. 915; 303 N.Y. 627, 853.]
