Opinion
No. 2002-946 K CR.
Decided January 27, 2004.
Appeal by defendant from a judgment of the Criminal Court, Kings County (D. Chun, J.), rendered June 6, 2002, convicting him, after a bench trial, of attempted assault in the third degree (Penal Law §§ 110.00, 120.00) and harassment in the second degree (Penal Law § 240.26), and imposing sentence.
Judgment of conviction unanimously reversed on the law and as a matter of discretion in the interest of justice, and accusatory instrument dismissed.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Upon a review of the record, we find that defendant was deprived of a fair trial. During his direct examination, the police officer testified that the complainant told him what happened to her, but he did not go into the substance of the conversation. He also testified that he took photographs of the complainant's injuries and that People's Exhibit 3 fairly and accurately depicted the injuries as they appeared on the date that he took the photographs. On cross-examination, defense counsel asked the officer whether the complainant told him that her injuries were sustained on the same date the photographs were taken and whether she told him that her black and blue mark had appeared within half an hour after she sustained her injuries (which was the time at which the photographs were taken). The officer replied affirmatively to both questions. Thereafter, the trial court found that said testimony had "opened the door" and ruled that the People, on redirect examination, could inquire as to the cause of the injuries and the person responsible for causing the injuries. The complainant did not testify at trial.
We find that defense counsel did not "open the door." Rather, in order to clarify the officer's direct testimony regarding the photographs, counsel carefully framed his questions to elicit yes or no responses and his questions concerned "time", not "who" or "how." Therefore, the court should not have allowed the People to inquire into "how" the complainant's injuries were caused and "who" caused her injuries, and should have limited redirect to the subject matter of the cross-examination ( see People v. Melendez, 55 NY2d 445, 452; People v. Buchanin, 145 NY 1, 24).
We further find, in view of the less than overwhelming evidence of defendant's guilt, that the error committed by the trial court is not harmless ( see e.g. People v. Crimmins, 36 NY2d 230). Inasmuch as defendant has served his sentence, and given the nature of the charges against him, the accusatory instrument is dismissed ( see People v. Flynn, 79 NY2d 879; People v. Maio Ni, 293 AD2d 552; People v. Medina, NYLJ, Jan. 25, 2002 [App Term, 2d 11th Jud Dists]).