People v. Flores

115 A.D.2d 754, 496 N.Y.S.2d 781, 1985 N.Y. App. Div. LEXIS 55178

Opinions

Appeal by defendant from a judgment of the Supreme Court, Kings County (Lane, J.), rendered July 12, 1984, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and indictment dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury.

Error was committed when in directing the readback of the testimony of a key prosecution witness the trial court ordered the deletion of the portion of the testimony where the witness was impeached through use of his Grand Jury testimony.

When the requested testimony was read back with the impeachment portion deleted, the error became prejudicial. Although our dissenting colleague believes that the record is unclear as to whether the deleted portion of the testimony was ever reached during the readback, we have no such difficulty. Page 555 of the record contains the following: "(Whereupon, the requested testimony is read back by the court reporter.)”.

The next thing in the record is a request from the foreperson to have some of the testimony reread yet a second time.

Under the circumstances, it is apparent that reversal is necessary and since the conviction was for a lesser included offense the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v Beslanovics, 57 NY2d 726). Lazer, J. P., Niehoff and Kooper, JJ., concur.