See 82 A.L.R.2d 589. In People v. Reger, 13 App. Div.2d 63, 213 N.Y.S.2d 298, the court considered a situation in which tapes were played for the purpose of refreshing the witness's recollection in the presence of a jury. The court said at 70, 213 N.Y.S.2d at 306: "Moreover, I am of the opinion that error was committed by permitting the contents of the tapes, marked for identification only, and which dealt solely with collateral matters, to be played to and the contents heard by the jury."
"The rule as to refreshing recollection is plain. . . . it must be shown that a witness' present recollection is exhausted before it is permissible to attempt to refresh such recollection by extraneous means or documents." People v. Reger, 213 N.Y.S.2d 298, 307 (1st Dep't 1961). Here, the witness gave no indication that his memory was faulty or that he could not recall whether petitioner had made the statement suggested by the prosecutor; he simply denied that such a statement had been made.
); Falcone v. New Jersey Bell Tel. Co., 98 N.J.Super. 138, 151, 236 A.2d 394, 401 (N.J.Super.A.D. 1967) (Plaintiff "should have been permitted to examine and have the use of" records and notes used by defendant's medical examiner.); People v. Reger, 13 A.D.2d 63, 70-71, 213 N.Y.S.2d 298, 307 (N.Y.A.D. 1961) ("The writing or document which revives a present recollection is not evidence and may not be shown to the jury by the party using it. Opposing counsel, however, have a right to inspect it and use it to test the credibility of the witness."); Jackson v. State, 166 Tex.Crim. 348, 349, 314 S.W.2d 97 (Tex.Cr.App. 1958) ("It is well settled that where a witness, while testifying, uses a writing to refresh his recollection, the defendant or his counsel is entitled to inspect the statement for cross-examination purposes.").
Thus, the prosecutor was improperly permitted to denigrate the defendant's credibility by portraying her as an unstable individual who resorted to violence because of her psychiatric condition. Moreover, even if this topic were a proper one for cross-examination as probative of the defendant's credibility, the court failed to give the requisite limiting instruction to the jury (see, People v Reger, 13 A.D.2d 63, 68-69), thereby compounding the prejudice to the defendant. Accordingly, because there was no evidence to link this assault with any alleged psychological disturbance, and because this line of inquiry and the subsequent rhetoric in the People's summation only bolstered this improper line of reasoning, we find that the defendant is entitled to a new trial.
By cross-examining the police officer as to matters not brought out on direct examination, defendants' counsel made the witness his own; and the examination became the direct and affirmative evidence of the examining party, subject to the appropriate restraints (8 Carmody-Wait 2d, New York Practice, p. 226; Richardson, Evidence [9th ed.], § 527, p. 536). Thus, defendants' counsel was bound by the officer's answers and could not impeach them, since to do so would be to impeach his own witness ( Kay v. Metropolitan St. Ry. Co., 163 N.Y. 447, 451-452). If the writing refreshed the recollection of the witness, it could not properly be shown to the jury by the party using it (here the defendants); only the opposing party — here the plaintiffs — had the right to have the jury see it (see People v. Reger, 13 A.D.2d 63, 70-71). Since substantial prejudice may very well have resulted from the improper receipt of the police report in evidence, a new trial should be had (cf. Bennett v. Crescent Athletic-Hamilton Club, 270 N.Y. 456, 458). Hopkins, Acting P.J., Munder, Martuscello, Kleinfeld and Benjamin, JJ., concur.
We have heretofore expressed our disapproval of the practice of permitting extensive periods of time to elapse between the taking and arguing of an appeal, particularly where a certificate of reasonable doubt has been granted. ( People v. Reger, 13 A.D.2d 63, 64.) There has been inordinate delay in the prosecution of this appeal. The extended time to argue the appeal expired in September, 1968. Since the defendant has failed to procure an order for further extension, the defendant should be required to surrender. (See People v. Gorney, 18 A.D.2d 964. ) Accordingly, the motion to dismiss the appeal is granted, in the exercise of discretion, and the certificate of reasonable doubt is vacated, enlargement of time denied, and the defendant is directed to forthwith surrender himself in execution of the judgment of conviction herein.
"Thus the jury had for its consideration matters which, under the rules of evidence on collateral issues and credibility, were clearly not admissible. This immaterial and * * * incompetent and irrelevant evidence became, in effect, primary evidence." ( People v. Reger, 13 A.D.2d 63, 70.) Any subsequent action by the trial court, in its effort to minimize the damage caused by the incompetent and prejudicial evidence, was much too late. In addition, the trial court committed prejudicial error in permitting testimony from Ostrager "a person interested in the event" (CPLR 4519), concerning his loan transaction with the decedent.
( People v. Huntley, 15 N.Y.2d 72, 77.) Pending said trial and the determination of this appeal, the certificate of reasonable doubt as to defendant Carew is cancelled and vacated and he is remanded. (See People v. Kazmerski, 13 A.D.2d 729; People v. Reger, 13 A.D.2d 63, 64.) Concur — Breitel J.P., McNally, Stevens, Eager and Steuer, JJ.
In our opinion, this prejudiced the right of the defendant to an impartial consideration of the competent evidence adduced upon the trial (cf. People v. Vollmer, 299 N.Y. 347; People v. Reger, 13 A.D.2d 63). Justice requires a new trial, even in the absence of objection or exception to the impropriety (Code Crim. Pro., § 527; People v. Mezzapella, 19 A.D.2d 729). It should also be noted that the District Attorney is in accord with the views here expressed. In his brief he urges that the judgment of conviction be reversed and a new trial ordered on the ground stated.
In our opinion, the learned trial court erred in refusing to permit in evidence, when offered by defendant, a report used by one of plaintiffs' witnesses to refresh his recollection. That report, made by a third party, was admissible on the question of the credibility of the witness (cf. People v. Reger, 13 A.D.2d 63, 71; United States v. Caserta, 199 F.2d 905, 909; 3 Wigmore, Evidence [3d ed.], § 763, pp. 111-112). We are also of the opinion, however, that it was not error to admit proof as to loss of earnings, even though no such claim was made in the bill of particulars, which was served without any demand therefor.