Opinion
November 6, 1972
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 26, 1972, convicting him of criminal mischief in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. In our opinion, it was unlawful to compel defendant, over his objection, to submit to trial when the People had failed to serve an ordered bill of particulars. Until the service and filing of such a bill, proceedings upon the indictment are stayed (CPL 200.90, subd. 5). Furthermore, it was reversible error to suggest to the jury that the testimony of the complaining witness was truthful and that merely because defendant denied the crime did not mean that defendant was innocent. Lastly, it was reversible error, in the circumstances at bar, to refuse to adjourn the trial until after the luncheon recess in order that defendant might offer the evidence of witnesses who were represented by him to be en route to court. In addition to the foregoing, upon the argument of this appeal and in his brief, the District Attorney consented to a reversal and a new trial. Latham, Acting P.J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.