Opinion
May 12, 1980
Appeal by permission from an order of the Supreme Court, Suffolk County, dated June 20, 1979, which denied defendant's motion pursuant to CPL 440.10 to vacate a judgment of the Supreme Court, Westchester County, rendered March 23, 1970, convicting him of murder in the first degree under the former Penal Law, upon a jury verdict, and imposing sentence. The order of this court dated August 31, 1979, granting permission to appeal to this court, is deemed amended to reflect the correct date of the order sought to be reviewed. Order reversed, on the law, and matter remanded to the Supreme Court, Suffolk County, for a new hearing in accordance herewith. The hearing court committed reversible error in considering as evidence an affidavit of former Assistant District Attorney Maurice Nadjari, who was the trial prosecutor at the defendant's murder trial. Since the affidavit was clearly hearsay, and was never formally received into evidence, it should not have been relied upon by the hearing court in reaching its determination. Hopkins, J.P., Titone, Mangano and Rabin, JJ., concur.