| People v Lee |
| 2014 NY Slip Op 06374 [120 AD3d 1137] |
| September 25, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Victor Lee, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January26, 2012, as amended February 24, 2012, convicting defendant, after a jury trial, ofcriminal sale of a controlled substance in the third degree, and sentencing him, as asecond felony drug offender whose prior felony conviction was a violent felony, to aterm of six years, unanimously reversed, on the law, and as a matter of discretion in theinterest of justice, and the matter remanded for a new trial.
Defendant's constitutional right of confrontation was violated when the court readthe transcript of the codefendant's guilty plea allocution to the jury. The codefendant'sstatements by which she inculpated defendant, were testimonial hearsay by anontestifying declarant, whom defendant did not have a prior opportunity tocross-examine (see Crawford v Washington, 541 US 36 [2004]).
The People's argument that the Confrontation Clause was inapplicable becausedefendant himself introduced the evidence is unavailing. Although defendant personallyrequested the introduction of the evidence, he was not appearing pro se. Defendant wasrepresented by counsel throughout the case, and there was no form of hybridrepresentation. The decision to introduce evidence was not a fundamental decisionreserved to defendant, but a strategic or tactical decision for his attorney (see People v Jones, 41 AD3d242, 243 [1st Dept 2007], lv denied 9 NY3d 923 [2007]). Thus, defendantwas deprived of his right to counsel when the court admitted the evidence solely basedon his own request, over his attorney's vigorous and consistent opposition (see People v Colville, 20NY3d 20, 32 [2012]). Likewise, since the decision to object to evidence is relegatedto the attorney, the admission of testimonial hearsay in violation of the ConfrontationClause constitutes a preserved error here. On appeal, defendant also challenges the sameevidence on the grounds that he was deprived of due process because the defense lackedan opportunity to comment on the evidence before the jury, and that the courtimprovidently exercised its discretion by untimely admitting the evidence after the juryhad begun deliberating. Although these additional arguments are unpreserved, reversal isfurther warranted based on those claims, in the interest of justice. New evidence may[*2]be admitted during jury deliberation only with "theutmost caution" (People v Olsen, 34 NY2d 349, 353 [1974]). That standard wasnot met under the circumstances of this case, given the risk that the evidence wouldreceive "undue emphasis" as a result of "the drama of discovery" at the proverbial lastminute (id. at 353-354).
The errors in admitting the evidence were not harmless, because the codefendant'sadmission to working with defendant to sell cocaine to an undercover police officer boreon the central issue at trial, namely whether he acted as the agent of the buyer (seePeople v Crimmins, 36 NY2d 230 [1975]).
Since we are ordering a new trial, we find it unnecessary to discuss defendant's otherarguments, except that we find that the verdict was based on legally sufficient evidenceand was not against the weight of the evidence. Concur—Sweeny, J.P.,Moskowitz, DeGrasse, Manzanet-Daniels and Clark, JJ.