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PEOPLE v. STREIFF

41 A.D.2d 259 (1973)

The People of the State of New York, Respondent, v. Charles J. Streiff, Appellant The People of the State of New York, Respondent, v. John L Davis, Appellant The People of the State of New York, Respondent, v. Richard A. Payne, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

April 13, 1973.

Attorney(s) appearing for the Case

Rossi, Cohen & Durso (Vincent J. Rossi of counsel), for Charles J. Streiff, appellant.

Donald L. Austin (Louis Zywiak of counsel for John L. Davis; Donald L. Austin of counsel for Richard A. Payne), for appellants.

Richard D. Enders, District Attorney (Rocco Louis Versace of counsel), for respondent.

WITMER and MOULE, JJ., concur with DEL VECCHIO, J. P.; CARDAMONE, J., dissents in part and votes to affirm as to Payne and to reverse on the law and grant a new trial as to Streiff and Davis, in an opinion.

DEL VECCHIO, J. P.

Defendants appeal from a judgment of conviction of murder committed during the course of their commission of the crime of attempted rape in the first degree.

On October 4, 1970 the nude body of Martha Kirk was found at the bottom of an embankment off the Penn Mountain Road in the Town of Steuben. The thick shrubbery on the side of the embankment and around the body was not bent and...

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