The People of the State of New York, Respondent, v. Carmine J. Picozzi, Appellant; The People of the State of New York, Respondent, v. Murray Goldstein, Appellant; The People of the State of New York, Respondent, v. Gabriel Berger, Appellant; The People of the State of New York, Respondent, v. Irving Levitt, Appellant; The People of the State of New York, Respondent, v. Rubin Nussbaum, Appellant

The People of the State of New York, Respondent, v. Carmine J. Picozzi, Appellant. The People of the State of New York, Respondent, v. Murray Goldstein, Appellant. The People of the State of New York, Respondent, v. Gabriel Berger, Appellant. The People of the State of New York, Respondent, v. Irving Levitt, Appellant. The People of the State of New York, Respondent, v. Rubin Nussbaum, Appellant. [MAJORITY] It was error to refuse to take the testimony of the police officers, who had been identified by defendants and who were sworn to have spoken with defendants in the presence of complainant, at a time when she swore she was under restraint by defendants and “ scared ” and “ excited ” and wanted to get away from them, and which was not more than two hours before the alleged forced intercourse. Positive identification of defendants by the officers was not a necessary preliminary to the examination of the officers as to what occurred. (People v. Strollo, 191 N. Y. 42; King v. New York Central & Hudson Riv. R. R. Co., 72 N. Y. 607; 2 Wigmore on Evidence [3d ed.], § 658.) Carswell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ., concur.