People v. Boone 49 A.D.2d 559

Judgment, Supreme Court, Bronx County, rendered December 6, 1973, convicting the defendant, upon a jury verdict, of murder and possession of a weapon (felony), unanimously reversed, on the law and the facts and in the interest of justice, and a new trial directed. It was the theory of the prosecution that this defendant was with two confederates in an. after-hours club, when one of the confederates shot a patron in the chest. The three men then led the victim towards the street, and his body was later discovered outside another establishment. An autopsy revealed that the chest wound was fatal. A report in the file of the District Attorney shows that two other men had given information to the police that the shooting had taken place outside of the other establishment where the victim was found. This was crucial exculpatory information which should have been made available to defendant. (See Brady v Maryland, 373 US 83; People v Simmons, 36 NY2d 126.) Under the circumstances, the judgment must be reversed and a new trial ordered. We note the District Attorney’s candor in acknowledging that a serious question exists respecting the sufficiency of the proof establishing defendant’s participation in the crime. Concur—Stevens, P. J., Kupferman, Lupiano, Tilzer and Nunez, JJ.