| People v Andujar |
| 2012 NY Slip Op 08756 [101 AD3d 1039] |
| December 19, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jonathan Andujar, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered June 11, 2009, convicting him of manslaughter in the first degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we neverthelessaccord great deference to the factfinder's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewingthe record here, we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
However, over the defendant's objection, the trial court allowed the prosecutor to elicit, froma detective, the statement of a nontestifying codefendant that the defendant was in thecodefendant's vehicle on the night of the incident. As the People correctly concede, this violatedthe defendant's right of confrontation, secured to him by the Sixth Amendment to the UnitedStates Constitution (see Crawford v Washington, 541 US 36, 52 [2004]; see alsoRichardson v Marsh, 481 US 200, 206 [1987]; Davis v Washington, 547 US 813,822 [2006]). This error was compounded when, on summation, the prosecutor argued that thecodefendant's statement established the defendant's presence at the scene of the incident. Sincethe remaining evidence establishing the defendant's identity as one of the assailants was notoverwhelming, the error cannot be deemed harmless beyond a reasonable doubt (see People v Douglas, 4 NY3d777, 779 [2005]; People vHardy, 4 NY3d 192, 198 [2005]; People v Crimmins, 36 NY2d 230, 240-241[1975]). Accordingly, a new trial is required.
Since a new trial is required, we note that the Supreme Court did not improvidently exerciseits discretion in ruling that the People could impeach the defendant's credibility, should he testify,with questioning regarding his prison disciplinary record (see People v Sandoval, 34NY2d 371 [1974]; People v Adams,39 AD3d 1081, 1082 [2007]; People v Porter, 305 AD2d 933, 934 [2003];People v [*2]Veneracion, 268 AD2d 363 [2000]).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Florio, J.P., Leventhal, Austin and Cohen, JJ., concur.
[Recalled and vacated, see 105 AD3d 756.]