People v. Etheridge

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 28, 1977, convicting him of manslaughter in the first degree and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and a new trial ordered. Under the circumstances of the instant case, in which the only substantial issue was whether the defendant had acted in self-defense (in response to an alleged assassination attempt) in firing upon the decedent and the complaining witness, we believe that the following three errors operated to deprive the defendant of a fair trial. First, it was impermissible for the prosecutor, in attempting to disprove the defense of justification (Penal Law, §§ 25.00, 35.00), to establish during his cross-examination of the defendant that the latter had never gone to the police and reported the alleged attempt on his life, as the foregoing would have required the defendant to incriminate himself on the charge of illegal possession of the murder weapon, for which he was also ultimately indicted (cf. People v Rothschild, 35 NY2d 355; United States ex rel. Burt v State of New Jersey, 475 F2d 234, cert den 414 US 938; Doyle v Ohio, 426 US 610). Second, it was error for the trial court to preclude the defendant (on the ground of hearsay) from explaining to the jury that his "flight” to Florida on the evening of the shooting was predicated on information coming to his attention that certain "friends” of the victims were "looking for [him]”, and, later, to exacerbate that error by charging the jury that defendant’s "flight” might be considered by it as some evidence of "consciousness of guilt”. As the District Attorney has commendably conceded, such testimony would have been admissible as evidence of the defendant’s state of mind in leaving the jurisdiction and would not have constituted hearsay (see Richardson, Evidence, [Prince, 10th ed], § 205). Finally, although not of controlling significance, it was improper for the prosecutor to cast aspersions on the defendant and his eyewitness during the course of his summation by branding them both as "liars” (see People v Shanis, 36 NY2d 697; People v Rogers, 59 AD2d 916). In view of the foregoing and in the absence of substantial physical evidence which is *862strongly corroborative of either the version of the crime put forth by the prosecution and its eyewitnesses or the defendant and his eyewitness, it cannot be said that the errors set forth above, which relate solely to credibility, are insubstantial or may be regarded as harmless (cf. People v Washington, 68 AD2d 90; People v Musolino, 54 AD2d 22, cert den 430 US 935). We pass upon no further issue. Rabin, J. P., Gulotta and Shapiro, JJ., concur.