People v. Kelly

48 A.D.2d 802, 369 N.Y.S.2d 446, 1975 N.Y. App. Div. LEXIS 9992

Opinion

Judgment, Supreme Court, Bronx County, rendered November 28, 1973, unanimously reversed, on the law, and the case re manded for trial anew. One Wright, called as a witness by the People as to the robbery alleged to have been perpetrated by defendant-appellant and confederates, asserted his constitutional privilege when asked on cross-examination concerning an episode of criminality wholly unrelated to the instant case. Whether the prosecutor knew or not when he called Wright as a witness that he would assert the privilege is beside the point; the actual fact is that defendant was deprived of the opportunity of impeaching him. "The inability of defendant to cross-examine [the witness called by the prosecution] on these critical issues effectively destroyed any opportunity for defendant to undermine or refute [that witness’] damaging testimony against him. * * * Thus, the prosecution had the advantage of [the testimony on direct] without the danger of weakening by cross-examination concerning veracity.” Dissent of Hopkins, J., People v Schneider (44 AD2d 845, revd 36 NY2d 708, 709) "and a new trial ordered on the dissenting memorandum of Mr. Justice James D. Hopkins at the Appellate Division.” Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Lane, JJ.