People ex rel. Wright v. Smith

— Judgment unanimously affirmed. Memorandum: In this appeal from a judgment which denied a petition for a writ of habeas corpus, petitioner contends that he was denied due process because at the time of his trial, which commenced on July 31, 1972, he was required to furnish the People with a list of alibi witnesses without the opportunity to obtain a corresponding list of rebuttal witnesses in return. Section 295-1 of the Code of Criminal Procedure, which mandated such a procedure, was held unconstitutional in People v Bush (33 NY2d 921). By its terms, however, the Bush case does not apply to trials which commenced prior to June 11, 1973, unless the statute was applied to prevent a defendant from introducing testimony to support his alibi defense as a sanction for failing to comply. That was not the situation here. (Appeal from judgment of Wyoming County Court dismissing writ of habeas corpus.) Present — Moule, J. P., Cardamone, Simons, Mahoney and Witmer, JJ.