People v. Smith

26 A.D.2d 588, 272 N.Y.S.2d 174, 1966 N.Y. App. Div. LEXIS 3902

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 28, 1965, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial granted. No questions of fact were considered. At the trial, detective Ridings was permitted to testify to a conversation had with defendant’s brother not in defendant’s presence to the effect that defendant was at the scene of the slaying and that the brother had seen flashes from an object in defendant’s hand. This testimony was inadmissible and highly prejudicial (cf. People v. Gould, 25 A D 2d 160, 161). We are also of the opinion that there was sufficient basis in the record to justify the requested instruction as to self-defense which was refused by .the trial court. On the retrial, the voluntariness of defendant’s statement may be determined in accordance with the provisions of the Code of Criminal Procedure (§ 813-f et seq.). Defendant may not be retried for murder in the first degree (People v. Ressler, 17 N Y 2d 174). Ughetta, Acting P. J., Christ, Hill, Rabin and Benjamin, JJ., concur.