PEOPLE v. SMITH


121 A.D.2d 411 (1986)

The People of the State of New York, Respondent, v. Eddie Smith, Appellant

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

June 2, 1986


Judgment reversed, on the law, and new trial ordered.

We agree with the defendant's contention that the trial court's charge improperly precluded the jury from considering the complainant's testimony that she believed that her assailant was armed with a toy gun. Thus, the jury was precluded from finding that since the defendant was found in possession of a loaded and operable weapon, he was not the assailant and that the gun found in his possession was not the gun...

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