Opinion
January 15, 1992
Appeal from the Supreme Court, Queens County (Beerman, J.).
Ordered that the judgment is reversed as a matter of discretion in the interest of justice, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
At the Hughes/Tunstall hearing (see, People v. Hughes, 59 N.Y.2d 523, cert denied 492 U.S. 908; People v. Tunstall, 63 N.Y.2d 1), the complainant failed to appear. Her hypnotist testified that he had no recollection of the two or three sessions he conducted with her and that his records had been destroyed in an office fire. Upon this record, the Supreme Court properly determined that the People failed to present clear and convincing proof of the reliability of the complainant's prehypnotic recollection, and that the People failed to demonstrate by clear and convincing evidence that there was no substantial impairment of the defendant's right of cross-examination caused by the hypnotized complainant's increased confidence in her recollections (see, People v. Tunstall, supra; People v. Hughes, supra). As such, the complainant's testimony was inadmissible. The complainant's testimony being the only evidence presented at trial connecting the defendant to the crimes charged, we reverse the conviction and dismiss the indictment. Kunzeman, J.P., Harwood, O'Brien and Ritter, JJ., concur.