SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
February 24, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ALEXANDER JOHNSON, APPELLANT
Judgment of the Supreme Court, Kings County, rendered June 28, 1967, reversed, on the law, and new trial ordered.
Beldock, P. J., Christ, Brennan, Rabin and Hopkins, JJ., concur.
In our opinion, it was error (1) to permit Detective O'Donnell to "refresh" his recollection from the complaint as to a fact about which, the record indicates, he had no personal knowledge (Richardson, Evidence [9th ed.], § 479, p. 489); (2) to permit the prosecutor to question defendant about the nature of a prior assault conviction and his military training, when the obvious intent of such questioning was to show from character or experience a propensity to commit the crime for which defendant was on trial (People v. Russell, 266 N. Y. 147, 152; People v. Zackowitz, 254 N. Y. 192, 197; People v. Molineux, 168 N. Y. 264, 291; People v. Neumuller, 29 A.D.2d 886; People v. Moore, 20 A.D.2d 817); and (3) to permit a statement inadmissible on the People's direct case (Miranda v. Arizona, 384 U.S. 436
, 477) to be used for impeachment purposes as to matters which were probative of the requisite ingredients of the crime charged (People v. Johnson, 30 A.D.2d 575) and were elicited from defendant on cross-examination by the prosecutor (People v. Schwartz, 30 A.D.2d 385, 388).
The findings of fact below are affirmed.
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