| N.Y. App. Div. | May 20, 1940
Judgment of the County Court of Kings County, convicting the defendant of the crimes of sodomy and assault in the third degree, with an indeterminate sentence of not less than ten and not more than twenty years for the crime of sodomy, and a suspension of sentence for the crime of assault in the third degree, reversed on the law and the facts, and a new trial ordered. The evidence amply establishes that the defendant was guilty of some grade of crime with respect to the occurrences in which he and the complainant were involved. There was, however, a close question of fact as to whether he was guilty of the serious crime of sodomy. In view of the state of the proof as to this offense, it was prejudicial error for the trial court on several occasions inaccurately to observe that the complainant’s prior contradictory testimony on the magistrate’s hearing was not inconsistent with her testimony on this trial and thus minimize the effect of the contradictory character of the prior evidence. It was likewise prejudicial error for the trial court, in connection with those erroneous observations, to restrict unduly the cross-examination of the complaining witness as to her prior contradictory testimony. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.