SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
July 14, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
FRANCISCO RODRIGUEZ ROMERO, APPELLANT
Christ, Acting P. J., Brennan, Rabin, Hopkins and Munder, JJ., concur.
Judgment of the Supreme Court, Kings County, rendered March 16, 1967, convicting defendant of assault in the second degree (two counts) and felonious possession of dangerous weapons (indictment No. 893/1966), upon a jury verdict, affirmed. No opinion. Judgment of the Supreme Court, Kings County, rendered March 16, 1967, convicting defendant of assault in the second degree (indictment No. 884/1966), upon a jury verdict, reversed, on the law and the facts, and new trial ordered in the interests of justice. It was error to exclude proof that one Cuevas was in a State hospital at the time he was alleged to have been at the scene of the crime. It appears from the record that this evidence would affect the credibility of the only witness to identify defendant as the perpetrator of the crime of which he was convicted. A new trial should be ordered, in the interests of justice, to afford defendant an opportunity to adduce such evidence (cf. People v. Kelly, 12 N.Y.2d 248).
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