People v. Stewart , 37 A.D.2d 908 ( 1971 )

Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: Defendant Philip L. Stewart was convicted of three counts of assault in the second degree and one count of obstructing governmental administration, and his brother, defendant Edward L. Stewart, was convicted of one count of assault in the second degree and one count of obstructing governmental administration. These convictions followed charges arising out of an altercation between the defendants and certain members of the Monroe County Sheriff’s Department when the defendants were committed to the County Jail on unrelated charges. The charges were that the defendants feloniously and with intent to prevent peace officers from performing lawful duties caused physical injury to the officers. The defense pleaded justification alleging that the officers were not performing lawful duties and that defendants had reasonable grounds to believe that the officers were not so engaged. We conclude that it was error to preclude the defendant Philip Stewart from testifying directly as to his intent (People v. Levan, 295 N. Y. 26, 33-34; People v. Singleton, 21 A D 2d 907). It was also error to refuse to permit the defendants and their mother to testify that the Justice of the Peace, who signed the defendants’ original commitment order, had instructed defendants that they would not have to be photographed or fingerprinted. While the obieetion to this offer and the trial -court’s reason for sustaining it do not appear in the record, it was clearly relevant on the issue of the defendants’ respective intent and was not hearsay as thus offered (Richardson, Evidence [9th ed.l, §§ 206, 209). Accordingly, we are required to reverse and grant defendants a new trial. (Appeal from judgment of Monroe County Court convicting defendant of obstructing governmental administration and assault, second degree.) Present—-DelVecehio, J. P., Marsh, Gabrielli, Moule and Cardamone, JJ. «