From Casetext: Smarter Legal Research

People v. Kelly

Appellate Division of the Supreme Court of New York, First Department
Jun 17, 1975
48 A.D.2d 802 (N.Y. App. Div. 1975)

Opinion

June 17, 1975


Judgment, Supreme Court, Bronx County, rendered November 28, 1973, unanimously reversed, on the law, and the case remanded for trial anew. One Wright, called as a witness by the People as to the robbery alleged to have been perpetrated by defendant-appellant and confederates, asserted his constitutional privilege when asked on cross-examination concerning an episode of criminality wholly unrelated to the instant case. Whether the prosecutor knew or not when he called Wright as a witness that he would assert the privilege is beside the point; the actual fact is that defendant was deprived of the opportunity of impeaching him. "The inability of defendant to cross-examine [the witness called by the prosecution] on these critical issues effectively destroyed any opportunity for defendant to undermine or refute [that witness'] damaging testimony against him. * * * Thus, the prosecution had the advantage of [the testimony on direct] without the danger of weakening by cross-examination concerning veracity." Dissent of Hopkins, J., People v Schneider ( 44 A.D.2d 845, revd 36 N.Y.2d 708, 709) "and a new trial ordered on the dissenting memorandum of Mr. Justice James D. Hopkins at the Appellate Division."

Concur — Markewich, J.P., Kupferman, Murphy, Tilzer and Lane, JJ.


Summaries of

People v. Kelly

Appellate Division of the Supreme Court of New York, First Department
Jun 17, 1975
48 A.D.2d 802 (N.Y. App. Div. 1975)
Case details for

People v. Kelly

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EUGENE KELLY, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 17, 1975

Citations

48 A.D.2d 802 (N.Y. App. Div. 1975)

Citing Cases

People v. Jones

While a defendant is deprived of his constitutional right of confrontation when a witness asserts a blanket…

People v. Codrington

Defendant was not denied his right to confront witnesses when his alleged accomplice invoked his 5th…