Opinion
June 13, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 3, 1976 on resentence, convicting him of attempted assault in the second degree and possession of weapons, as a felony, upon a jury verdict and imposing sentence. Judgment reversed, on the law, and new trial granted. The facts have been considered and determined to have been established. During the direct examination of a witness called by the District Attorney, the witness testified that she had not seen the defendant in possession of a gun in the company of the complainant. The prosecutor then questioned her concerning a prior unsworn, unsigned and contradictory statement made to an investigator from the District Attorney's office (see People v Freeman, 9 N.Y.2d 600, 603; see, also, CPL 60.35). In addition, during the cross-examination of the defendant, the District Attorney questioned her about two prior convictions, one more than 20 years old for assault in the third degree, and the other almost 40 years old for manslaughter in the first degree, both of which were without probative value in the case at bar (see People v Sandoval, 34 N.Y.2d 371). For these reasons, we have granted defendant a new trial. Hopkins, J.P., Rabin, Hawkins and O'Connor, JJ., concur.