| People v Loiseau |
| 2016 NY Slip Op 05172 [140 AD3d 1190] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Roodly Loiseau, Appellant. |
Rothstein Law PLLC, New York, NY (Eric E. Rothstein of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AntheaH. Bruffee, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Chun, J.), rendered October 22, 2014, convicting him of sexual abuse in the first degree(two counts) and endangering the welfare of a child (two counts), upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest ofjustice, and the matter is remitted to the Supreme Court, Kings County, for a newtrial.
The defendant contends that he was deprived of a fair trial because the SupremeCourt allowed the prosecutor, on cross-examination, to question him, in violation of theattorney-client privilege, as to whether he made a certain admission to his attorney whichcontradicted his trial testimony. Although the defendant failed to preserve this claim forappellate review (see CPL 470.05 [2]; People v Gill, 54 AD3d 965 [2008]), we neverthelessreach it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6][a]). Allowing this questioning was error, as it concerned a statement the defendantallegedly made to his attorney (see People v Wilkins, 65 NY2d 172, 179 [1985];People v Glenn, 52 NY2d 880, 881 [1981]; People v Shapiro, 308 NY453, 459 [1955]; People v Nelu, 157 AD2d 864 [1990]; People v Ali, 146AD2d 636, 637-638 [1989]). The error was not harmless, as the proof of the defendant'sguilt was not overwhelming and the questioning was highly damaging to the defendant'scredibility, the jury's assessment of which, compared to that of the complainant, was thecentral issue in the case (see People v Glenn, 52 NY2d at 881; People v Irvine, 52 AD3d866, 868-869 [2008]; People v Ali, 146 AD2d at 637; People vWagman, 99 AD2d 519, 520 [1984]; cf. People v Ackley, 235 AD2d 633,634 [1997]). Under the circumstances of this case, the court's instructions to the jury inits preliminary instructions and final charge that questions in and of themselves were notevidence, and that the jurors were prohibited from inferring any facts from the mereasking of a question, cannot be deemed to have obviated any prejudice resulting from theerror (see People v Magee,135 AD3d 1176, 1181 [2016]). Accordingly, we reverse the judgment of convictionand remit the matter to the Supreme Court, Kings County, for a new trial.
The defendant's remaining contentions are without merit or need not be reached in[*2]light of our determination. Eng, P.J., Roman, LaSalleand Barros, JJ., concur.