People ex rel. Battle v. Gray

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Westchester County, dated January 13, 1981, dismissing the writ. Judgment reversed, on the law, without costs or disbursements, and proceeding remitted to the Supreme Court, Westchester County, for hearing and determination on the issue of whether petitioner was present in the demanding State when the underlying crimes of breaking and entering and larceny were allegedly committed. In opposition to the People’s hearsay evidence (a written statement by an alleged accomplice) of petitioner’s presence in the demanding State at the time of the crimes, the hearsay statement of petitioner’s counsel that his client was in fact living and working in the City of New Rochelle at the pertinent time is sufficient to require a hearing (see People ex rel. Hines v Markley, 31 AD2d 538). Hopkins, J. P., Titone, Rabin and Weinstein, JJ., concur.