Opinion
March 31, 1966
Appeal from the Wyoming County Court.
Present — Bastow, J.P., Goldman, Henry, Del Vecchio and Marsh, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: On the trial of this indictment for assault, second degree, the inquiry of defense counsel directed to a prosecution witness as to how many officers he brought to arrest the defendant's son provided no reasonable basis for allowing the prosecution to offer evidence of defendant's resistance to lawful process and assault upon police officers on prior and unrelated occasions. The court in its charge stated that evidence of unlawful acts not charged was not to be used to infer that the acts charged had been committed. This was not sufficient to cure the highly prejudicial error of allowing in evidence the testimony of the prosecution witness that there had been prior instances of resistance to arrest at the defendant's home. Because of its lack of relevancy to the charges in issue and its prejudicial character its admission over defense counsel's vigorous objections and motions for mistrial necessitates a new trial in the interest of justice.