Opinion
June 18, 1991
Appeal from the Supreme Court, New York County (Rose Rubin, J.).
On March 11, 1988, plainclothes police officers observed defendant, accompanied by James Earl and Dennis White, walking back and forth along the Bowery for a period of about 45 minutes. Earl and White walked up behind John Mahoney, an alcoholic, while defendant backed into the street and looked back and forth repeatedly. Earl and White knocked Mahoney to the ground, whereupon White reached into Mahoney's pants pocket. The three men left the scene together and were apprehended moments later. White was found in possession of five one-dollar bills.
Mahoney did not testify at trial because he was repeatedly found in an intoxicated and filthy condition. Nevertheless, one of the police officers was permitted to testify, over a defense objection on the ground of hearsay, that ten minutes after the incident Mahoney had told the police that his assailants had taken five one-dollar bills from him. This error was of such magnitude as to taint the entire deliberative process. The judgment of conviction must accordingly be set aside and a new trial ordered.
Concur — Murphy, P.J., Carro, Wallach and Rubin, JJ.