People v. Gagliardi

38 A.D.2d 733, 329 N.Y.S.2d 642, 1972 N.Y. App. Div. LEXIS 5602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1972
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 22, 1970, convicting him of assault in the third degree, upon a jury verdict, and sentencing him to a prison term of one year in the New York City Penitentiary. Judgment reversed, on the law and in the interests of justice, and new trial ordered. The findings of fact below are affirmed. In our opinion it was prejudicial error to permit, over objection, the introduction of evidence of defendant’s indictment for another crime for which he had not yet been tried (People v. Morrison, 195 N. Y. 116). Additionally, on the defense of alibi the trial court’s charge used the phraseology previously rejected by us in People v. Johnson (37 A D 2d 733). On this record we cannot say that these were harmless errors beyond a reasonable doubt. Martuscello, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.