People v. Johnson , 51 A.D.2d 884 ( 1976 )

Judgment unanimously reversed, on the law, and new trial granted. Memorandum: Defendant appeals from a judgment of Jefferson County Court entered March 14, 1975 following a jury trial convicting defendant of attempted assault, second degree. At the trial the People, over objection, were permitted to read into evidence the Grand Jury testimony of one, George Lawton, whose trial presence was unavailable. Circumstances under which prior testimony of an unavailable witness may be introduced at a trial in a criminal case are specified in CPL 670.10. Under subdivision 1 of that section it is specifically provided that the testimony sought to be introduced must have been elicited at "(a) a trial of an accusatory instrument, or (b) a hearing upon a felony complaint * * * or upon a misdemeanor charge * * *, or (c) an examination of such witness conditionally”, conducted pursuant to other Criminal Procedure Law provisions not here applicable. The Grand Jury testimony admitted by the trial court neither qualified within any of the statutorily prescribed prior proceedings nor accorded to defendant his right of cross-examination. Such error, involving a constitutional deprivation, cannot be held to be harmless beyond a reasonable doubt and necessitates reversal and grant of a new trial (People v Crimmins, 36 NY2d 230). Other contentions raised by defendant on this appeal have been considered and found without merit. (Appeal from judgment of Jefferson County Court convicting defendant of attempted assault, second degree.) Present—Marsh, P. J., Moule, Simons, Mahoney and Goldman, JJ.