Opinion
November 9, 1967
Judgment of conviction unanimously affirmed. Defendant after trial was convicted of assault in the second degree. The assault was committed by deliberately running the complaining witness down in an automobile driven by defendant. All of the proof submitted by the People was to the effect that defendant was the driver of the automobile. And with the exception noted below, all of defendant's proof was to the effect that he was not in the automobile. The defendant offered in evidence the so-called short affidavit by the arresting officer which stated that defendant was in the automobile and directed the driver, a person unknown, to run down the complaining witness. This document was offered not to show the accuracy of the facts stated in it but to cast doubt on the prosecution's witnesses. The court charged that defendant could be found guilty if in fact he directed the driver to commit the act. In the circumstances, this was erroneous, as there was no evidence that defendant did so. However, the exception taken did not clearly indicate defendant's position with regard to the proof, nor that the short affidavit was not offered as evidence of the facts stated in it. Furthermore, the questions directed by the jury to the court show that the jury was considering the case on the basis that defendant was the driver. The error, even if properly excepted to, was immaterial and does not require upsetting the jury's verdict (Code Crim. Pro., § 542).
Concur — Botein, P.J., Stevens, Steuer, Capozzoli and Rabin, JJ.