| People v Andujar |
| 2013 NY Slip Op 02261 [105 AD3d 756] |
| April 3, 2013 |
| 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.
Motion by the appellant for leave to reargue an appeal from a judgment of theSupreme Court, Queens County, rendered June 11, 2009, which was determined bydecision and order of this Court dated December 19, 2012 (101 AD3d 1039 [2012]).
Upon the papers filed in support of the motion and the papers filed in connectiontherewith, it is,
Ordered that the motion is granted, the decision and order of this Court datedDecember 19, 2012 (People v Andujar, 101 AD3d 1039 [2012]), is recalled andvacated, and the following decision and order is substituted therefor:
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. Presiding Justice Eng has been substitutedfor former Justice Florio (see 22 NYCRR 670.1 [c]).
Ordered that the judgment is reversed, on the law, and the indictment is dismissed,without prejudice to the People to re-present any appropriate charges to another grandjury (see People v Gonzalez, 61 NY2d 633 [1983]; People v Beslanovics,57 NY2d 726 [1982]); and it is further,
Ordered that pursuant to CPL 470.45, the matter is remitted to the Supreme Court,Queens County, and that court shall immediately cause the defendant to be broughtbefore it forthwith, at which time that court shall issue a securing order in accordancewith the provisions of CPL 210.45 (9).
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]), wenevertheless accord 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 denied 542 US 946 [2004]; People v Bleakley, 69 [*2]NY2d 490, 495 [1987]). Upon reviewing the record here,we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
However, over the defendant's objection, the trial court allowed the prosecutor toelicit, from a detective, the statement of a nontestifying codefendant that the defendantwas in the codefendant's vehicle on the night of the incident. As the People correctlyconcede, this violated the defendant's right of confrontation, secured to him by the SixthAmendment to the United States Constitution (see Crawford v Washington, 541US 36, 52 [2004]; see also Richardson v Marsh, 481 US 200, 206 [1987];Davis v Washington, 547 US 813, 822 [2006]). This error was compoundedwhen, on summation, the prosecutor argued that the codefendant's statement establishedthe defendant's presence at the scene of the incident. Since the remaining evidenceestablishing the defendant's identity as one of the assailants was not overwhelming, theerror 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]).
As the defendant was acquitted of murder in the second degree, assault in the seconddegree, and criminal possession of a weapon in the fourth degree (two counts), theprohibition against double jeopardy precludes a retrial on those counts of the indictment(see People v Gonzalez, 61 NY2d 633, 635 [1983]). Moreover, since thedefendant was convicted of manslaughter in the first degree as a lesser-included offenseof the count of the indictment charging him with murder in the second degree, theindictment must be dismissed, without prejudice to the People to re-present anyappropriate charges to another grand jury (id. at 634; see People vBeslanovics, 57 NY2d 726, 727 [1982]).
Since there is a possibility that the defendant might be subject to a new trial, we notethat the Supreme Court did not improvidently exercise its discretion in ruling that thePeople could impeach the defendant's credibility, should he testify, with questioningregarding his prison disciplinary record (see People v Sandoval, 34 NY2d 371[1974]; People v Adams, 39AD3d 1081, 1082 [2007]; People v Porter, 305 AD2d 933, 934 [2003];People v Veneracion, 268 AD2d 363 [2000]).
The defendant's remaining contention has been rendered academic in light of ourdetermination. Eng, P.J., Leventhal, Austin and Cohen, JJ., concur.