People v. Brown

26 A.D.2d 614, 271 N.Y.S.2d 933, 1966 N.Y. App. Div. LEXIS 3826

Opinion

Judgment unanimously reversed on the law and facts and in the exercise of discretion, indictment dismissed, and defendant discharged. Memorandum: After a mistrial and two disagreements defendant on April 28, 1964 was convicted of unlawful assembly and assault third degree (misdemeanors). Sentence was suspended and defendant placed on probation for one year. The references to defendant’s religion on cross-examination and the admission in evidence of Exhibit 15 were irrelevant, unnecessary to the establishment of any essential element of the crimes charged and so prejudicial as to deprive defendant of a fair and impartial trial. Minimally defendant would be entitled to a new trial. (People v. Posner, 273 N. Y. 184.) However, since he has served his probationary period, the ends of justice will be .accomplished in this case by the dismissal of the indictments and the discharge of the defendant. (Cf. People v. Kvalheim, 17 N Y 2d 510; People v. Scheuren, 148 App. Div. 324.) (Appeal from judgment of Monroe County Court and a jury, convicting defendant of unlawful assembly and assault, third degree.) Present •—• Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.