People v. Forbes

87 A.D.2d 829, 449 N.Y.S.2d 9, 1982 N.Y. App. Div. LEXIS 16288

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered May 23,1980, convicting him of attempted assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The facts have been considered and are determined to have been established. The defendant sought to call his sister as a witness on his behalf. Criminal Term denied this request on the ground that her testimony would be collateral. This ruling was erroneous. The right to present evidence by witnesses of one’s own choosing is a fundamental ingredient of due process (Jenkins v McKeithen, 395 US 411, 429), and the testimony of a defendant’s witness should not be prospectively excluded unless it is offered in palpably bad faith (People v Gilliam, 37 NY2d 722, revg 45 AD2d 744 on the dissenting opn of Hopkins, J.; People v McClinton, 75 AD2d 900). As it cannot be said on this record that defendant was acting in bad faith, a new trial is required. We have considered defendant’s other contentions and find them to be lacking in merit. Titone, J. P., Mangano, Bracken and Boyers, JJ., concur.