| People v Fairweather |
| 2010 NY Slip Op 00534 [69 AD3d 876] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Clifton Fairweather, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C.Abbot, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered May 22, 2007, convicting him of assault in the first degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in the thirddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the facts, and as a matter of discretion inthe interest of justice, and the matter is remitted to the Supreme Court, Queens County, for a newtrial.
The defendant's contention that the evidence was legally insufficient to support hisconviction of assault in the first degree is unpreserved for appellate review (see CPL470.05 [2]; People v Hawkins, 11NY3d 484 [2008]). In any event, viewing the evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt (see People v Whyte, 47 AD3d852, 853-854 [2008]). In fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the recordhere, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant also contends that he was denied his constitutional right to confront thewitnesses against him because a detective testified that he determined the defendant was asuspect after he interviewed the injured complainant, who did not testify at trial (see Davis vWashington, 547 US 813, 821 [2006]; Crawford v Washington, 541 US 36, 42[2004]; People v Nieves-Andino, 9NY3d 12, 14 [2007]; People vBradley, 8 NY3d 124, 126 [2006]). Although this issue is unpreserved for appellatereview, we review it in the exercise of our interest of justice jurisdiction (see CPL470.15 [6] [a]).
The challenged testimony was improper, since it directly implied that the complainant [*2]identified the defendant as the perpetrator (see People v Berry, 49 AD3d 888,889 [2008]; People v McEaddy, 41AD3d 877, 879 [2007]; People vMack, 14 AD3d 517, 518 [2005]; People v Johnson, 7 AD3d 732 [2004]; People v Jones,305 AD2d 698, 699 [2003]; People v Latta, 295 AD2d 449 [2002]; People vJames, 289 AD2d 506, 507 [2001]; People v Martinez, 269 AD2d 608 [2000]). Inlight of the less than overwhelming evidence of the defendant's guilt, and the prosecutor'srepresentations in his opening statement that the complainant would testify at trial and identifythe defendant, it cannot be said that the error was harmless beyond a reasonable doubt (seeChapman v California, 386 US 18, 23-24 [1967]; People v Crimmins, 36 NY2d 230,237 [1975]; People v Douglas, 4NY3d 777, 779 [2005]; People vRush, 44 AD3d 799, 800 [2007]).
In light of our determination, we need not reach the defendant's remaining contentions.Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.