AD1 order dated October 30, 2014, affirming judgment of conviction. Decision below: 121 AD3d 617, 995 NYS2d 68. Lippman, Ch. J., granted leave June 19, 2015.

ISSUES PRESENTED: (1) Whether inferential hearsay testimony from a detective, that he started looking for defendant, the named suspect, after speaking to a non-testifying eyewitness, violated Crawford. (2) Whether under CPL 330.30(2), the trial court erroneously denied the motion to set aside the verdict based on juror misconduct without a hearing, even though there were disputed issues of fact. (Assigned counsel: Lisa A. Packard & Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue before the Court: Admission of hearsay implying non-testifying witness identified defendant as the perpetrator.

 

Held: Error harmless as the testimony, which was susceptible to another interpretation, had been struck by the trial court and the jurors properly instructed to disregard that testimony.

 

CAL Observes:

An unfortunate loss for the defendant, but the broader implications of the decision bode well for the defense bar in general.  The decision calls into grave doubt the typical script used by prosecutors in questioning cops about how they came to focus on a particular person in their investigation.  In case after case, we have seen prosecutors establish that a cop investigated an incident, spoke to a witness, and, after speaking to that witness, sought to arrest the defendant.  The implication of that testimony is that the witness, whose actual statement to the cop is not elicited, pointed the finger at the defendant.  Prosecutors defend that line of questioning by pointing out that no hearsay was elicited and that the cop merely testified to his own actions.  The Court of Appeals has firmly rejected that approach:  “A potential inference from this testimony is that the [witness] identified defendant as a suspect and, under this theory, defendant was deprived of his right to confront this witness.”  Regardless of whether an alternative interpretation of that testimony could be found, the danger of the implied hearsay violates the confrontation clause.

 

The decision was also good as to preservation.  The Court found (in a footnote) that not just a hearsay error but a constitutional (confrontation clause) error was preserved when counsel objected to the “whole implication” of that detective’s testimony suggesting that the witness had identified defendant as the assailant.

 

Unfortunately, despite analyzing the error under the constitutional harmless error standard (“no reasonable possibility that the error might have contributed to defendant’s conviction”), the Court found no harm.