
    The People of the State of New York, Respondent, v Eugene Kelly, Appellant.
   Judgment, Supreme Court, Bronx County, rendered November 28, 1973, unanimously reversed, on the law, and the case remanded for trial anew. One Wright, called as a witness by the People as to the robbery alleged to have been perpetrated by defendant-appellant and confederates, asserted his constitutional privilege when asked on cross-examination concerning an episode of criminality wholly unrelated to the instant case. Whether the prosecutor knew or not when he called Wright as a witness that he would assert the privilege is beside the point; the actual fact is that defendant was deprived of the opportunity of impeaching him. "The inability of defendant to cross-examine [the witness called by the prosecution] on these critical issues effectively destroyed any opportunity for defendant to undermine or refute [that witness’] damaging testimony against him. * * * Thus, the prosecution had the advantage of [the testimony on direct] without the danger of weakening by cross-examination concerning veracity.” Dissent of Hopkins, J., People v Schneider (44 AD2d 845, revd 36 NY2d 708, 709) "and a new trial ordered on the dissenting memorandum of Mr. Justice James D. Hopkins at the Appellate Division.” Concur—Markewich, J. P., Kupferman, Murphy, Tilzer and Lane, JJ.  