23 A.D.2d 854 | N.Y. App. Div. | 1965
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 17, 1963 after a jury trial, convicting him of robbery in the third degree, grand larceny in the second degree and assault in the third degree, and imposing sentence. Judgment reversed on the law and the facts and new trial granted. At the trial, defendant elicited from the complaining witness testimony that, years prior to the alleged commission of the, crimes- at bar, defendant had struck him and kicked his foot through his storefront window. The trial court, stating that the complainant’s testimony did not bear upon defendant’s guilt or innocence of the crimes for which he was being tried, directed the jury to disregard such testimony. Thereafter, the trial court prevented the defendant from attempting to show, through the testimony of defendant’s .former wife, that at a time not involved in the indictment at bar the complainant had made a false criminal charge. of assault against the defendant. Finally, on the ground that it was a collateral matter, the trial court denied defendant’s motion to reopen his defense for the purpose of attempting t.o show, through another .witness, that the complainant had falsely accused him of the assault and the breaking of his window. In our opinion, if the jury believed that in the past the complainant bad been assaulted by the defendant, and that the defendant bad destroyed the complainant’s property, the complainant’s testimony with respect to those matters was relevant to whether the complainant was hostile towards, pr biased against, fhe defendant; therefore, such