People v. Ramirez , 51 A.D.2d 809 ( 1976 )

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 30, 1975, convicting him of assault in the first degree (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. The prosecution failed to make out even a prima facie case of all of the elements necessary to establish either type of assault alleged in the indictment. The trial testimony of the defendant’s wife as to how she was shot was not, contrary to the prosecution’s contentions, incredible as a matter of law. Alleged prior statements by the wife that the shooting was not accidental, were not admissible as proof of the truth of those statements, but served to contradict her present version. Under such circumstances, there was no evidence as to how the shooting occurred. Hopkins, Acting P. J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.