New York's top court will hear arguments whether a New York Police Department sergeant's failure to get statements from two witnesses to a stabbing in a Times Square theater means a man's assault conviction should be overturned.

The trial judge refused to let defense lawyers cross-examine the sergeant about the unknown bystanders, who he overheard saying the injured man pulled the knife — not suspect Kenneth Hayes — but did not question because he was busy securing the scene.

The judge also ruled the police failure to get their contact information didn't violate the Brady requirement that prosecutors disclose information to the defense that could prove their client innocent.

A midlevel court divided 3-2 in rejecting Hayes' appeal.

He was also found guilty of weapon possession in the scuffle with Charles Shell, although Hayes claimed self-defense.