Opinion
June 29, 1995
Appeal from the Supreme Court, New York County, Harold Rothwax, J., Charles Tejada, J.
The prosecution's submission of a lengthy hypothetical to their ballistics expert served as a mid-trial summation, made worse by the implicit imprimatur of an expert ( see, People v. Ciaccio, 47 N.Y.2d 431, 438-439), and unquestionably deprived defendant of a fair trial ( see, People v. Buffington, 29 A.D.2d 229, amended 30 A.D.2d 773). The hypothetical had little to do with the declared purpose of the expert testimony, analysis of the ballistics evidence, which had otherwise been achieved; instead, it improperly sought to bolster the credibility of the complainant-witness by obtaining an opinion that defendant was guilty. Under the circumstances here, where the credibility of each side's key witness was questionable, such error mandates reversal.
Defendant's applications for an examination on commission pursuant to CPL article 680 to obtain testimony for his suppression hearing were properly denied because such relief is only available to obtain testimony for a trial ( see, CPL 680.10; 680.80; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 680.10, at 401 [1995 ed]). Such relief sought pursuant to People v. Augello ( 45 Misc.2d 402) was also properly denied.
Defendant's article 680 applications seeking to preserve testimony for trial were properly denied on the ground that the supporting proof offered as to the bias of the complaining witness was too speculative and remote and insufficiently detailed to establish the "`exceptional circumstances'" held necessary in People v. Carter ( 37 N.Y.2d 234, 239) to warrant relief.
Concur — Murphy, P.J., Rubin, Ross, Williams and Tom, JJ.