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THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANTHONY T. DANIELS, JR., Appellant, v. W. CECIL JOHNSTON, as Superintendent of Matteawan State Hospital, Respondent.

Judgment of the Supreme Court, Dutchess County dated January 16, 1967, which dismissed a writ of habeas corpus, reversed, on the law, without costs, and new hearing granted. No questions of fact were considered. Upon the hearing a medical report of an examining psychiatrist who was absent from the hearing was read into evidence over the timely objection of relator's counsel. The psychiatrist had been appointed by the court pursuant to subdivision 3 of section 35 Jud. of the Judiciary Law, which provides that in such a proceeding a psychiatrist may be appointed "to examine and testify at the hearing" upon the mental condition of the relator (emphasis added). No legally justifiable reason appears for the psychiatrist's absence from the hearing. In our opinion the admission of the medical report constituted reversible error, as it constituted hearsay and deprived relator of his vital right of cross-examination (see, Matter of Friedel v. Board of Regents, 296 N.Y. 347; cf. People ex rel. Cole v. Johnston, 22 A.D.2d 893). Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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PEOPLE EX REL. DANIELS v. JOHNSTON
(Oct 16, 1967)