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PEOPLE v. BUTHY

38 A.D.2d 10 (1971)

The People of the State of New York, Respondent, v. Dennis Buthy, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 9, 1971.

Attorney(s) appearing for the Case

Paul Ivan Birzon for appellant.

Michael F. Dillon, District Attorney (Thomas P. Cleary of counsel), for respondent.

GABRIELLI and CARDAMONE, JJ., concur with WITMER, J.; MOULE, J., dissents and votes to affirm in an opinion; GOLDMAN, P. J., not participating.

WITMER, J.

After two trials (see 33 A.D.2d 986) in which juries found the defendant guilty of assault in the first degree, we are reluctantly constrained to reverse the second judgment of conviction and grant a third trial, solely because of prejudicial error in the court's instructions to the jury.

Upon this appeal defendant also has urged three other grounds for reversal...

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