
    The People of the State of New York, Respondent, v Lloyd Berry, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 3, 1976, convicting him of several counts of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant Berry was indicted with one Raymond Mintz in connection with the robbery of three men on February 5, 1976 and a joint trial was commenced. Just prior to the conclusion of the People’s case, however, codefendant Mintz elected to plead guilty and, thereafter, he became a principal witness for the defense. Mintz testified that he had committed the robbery with someone named Sonny Simms and not with defendant Berry. As part of his defense, Berry then presented Simms, who admitted to having been Mintz’ accomplice, but whose version of the robbery did not coincide with the version given by any of the three victims, or by Mintz himself. At that point the trial court ordered Simms to leave the stand and declared, in the presence of the jury, that his testimony was incredible as a matter of law. The court, over defendant’s objection, then instructed the jury to disregard all of Simms’ testimony. Defendant appeals. The Sixth Amendment of the United States Constitution, made applicable to the States through the due process clause of the Fourteenth Amendment, affords an accused the right to a trial by jury and the right to present witnesses in his own defense (Washington v Texas, 388 US 14). Since the credibility of defendant’s witnesses was a question of fact to be determined by the jury, the court’s ruling that Simms’ testimony was incredible as a matter of law operated to deprive this defendant of his right to a jury trial (see People v Ohanian, 245 NY 227). In short, if the witness is competent, the court may not impede the fact-finding process of the jury (cf. Webb v Texas, 409 US 95). Accordingly, defendant’s conviction must be reversed and a new trial ordered. Latham, J. P., Damiani, Suozzi and Gulotta, JJ., concur.  