PEOPLE v. BERRY (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.), rendered May 3, 2005, convicting him of murder in the second degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

One hour after a verbal exchange relating to a near traffic collision between the complainant and an individual the complainant identified as the defendant, the complainant returned, in a car driven by Josiah Salley, to the same area where the dispute occurred. Through the windshield of his moving car, the complainant observed an individual, initially standing by a fence 100 to 200 feet away, charge the car while firing a gun into the driver's side window, killing Salley.   Nearby police officers pursued two individuals running from the scene and detained Kevin Kirven, whom the complainant, unharmed in the shooting incident, indicated was not the perpetrator.   After an interview at the police station, Kirven was released.   Nearly two years later, the defendant was arrested and identified by the complainant in a lineup.

 During the trial, the prosecutor elicited testimony from an investigating detective that a personal telephone/address book was recovered from Kirven during the interview at the police station.   The detective related that he photocopied one particular page from this book, sought subscriber information for one specific entry on that page, and then put out a “wanted card” for the defendant.

The plain implication of the detective's testimony was that Kirven, who was not called as a witness at trial, accused the defendant of committing the instant offense;  thus, the questioning was improper (see People v. Johnson, 7 A.D.3d 732, 733, 777 N.Y.S.2d 190;  People v. Jones, 305 A.D.2d 698, 699, 760 N.Y.S.2d 227;  People v. Latta, 295 A.D.2d 449, 743 N.Y.S.2d 315;   People v. James, 289 A.D.2d 506, 507, 735 N.Y.S.2d 180;  People v. Martinez, 269 A.D.2d 608, 704 N.Y.S.2d 826;  People v. Elliott, 256 A.D.2d 418, 682 N.Y.S.2d 625;  People v. Polidore, 181 A.D.2d 835, 837, 581 N.Y.S.2d 827;  People v. Brazzeal, 172 A.D.2d 757, 761, 569 N.Y.S.2d 746;  People v. Cummings, 109 A.D.2d 748, 749-750, 485 N.Y.S.2d 847;  People v. Cruz, 100 A.D.2d 882, 883, 474 N.Y.S.2d 142;  People v. Tufano, 69 A.D.2d 826, 827, 415 N.Y.S.2d 42).   Moreover, the prejudicial impact of this testimony was exacerbated by the prosecutor's assertion, during her opening statement, that Kirven “knew ․ the person who did the shooting” and “identified the Defendant to the police.”   Contrary to the People's contention, the defendant's argument that the elicitation of this testimony violated his right to confrontation is preserved for appellate review.   Even though it was not “plainly present[ed]” to the Supreme Court (People v. Feingold, 7 N.Y.3d 288, 290, 819 N.Y.S.2d 691, 852 N.E.2d 1163), the court's ruling on the defendant's objection “demonstrates that [the court] specifically confronted and resolved th[e] issue” (id.;   see People v. Prado, 4 N.Y.3d 725, 726, 790 N.Y.S.2d 418, 823 N.E.2d 824;  People v. Palmer, 34 A.D.3d 701, 702, 826 N.Y.S.2d 77).

 Because the implicit accusation made by Kirven during an interrogation at the police station was testimonial hearsay, its admission violated the defendant's right to confrontation (see Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224;  Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834;  People v. Johnson, 7 A.D.3d at 733, 777 N.Y.S.2d 190;  Ryan v. Miller, 303 F.3d 231, 247).   The evidence in this single eyewitness identification case was not overwhelming (see People v. Radcliffe, 273 A.D.2d 483, 487, 711 N.Y.S.2d 436) and, based upon the record as a whole, including the prosecutor's references in both her opening and closing statements to Kirven's dealings with the police, and the lack of any curative instruction regarding the evidence about Kirven's dealings with the police, it cannot be said that there is “no reasonable possibility that the erroneously admitted evidence contributed to the conviction” (People v. Johnson, 7 A.D.3d at 733, 777 N.Y.S.2d 190 [internal quotation marks omitted];  see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Therefore, the error was not harmless, and a new trial is required (see People v. Johnson, 7 A.D.3d at 733, 777 N.Y.S.2d 190;  People v. Milligan, 309 A.D.2d 950, 950-951, 767 N.Y.S.2d 38;  People v. Jones, 305 A.D.2d at 699, 760 N.Y.S.2d 227;  People v. Martinez, 269 A.D.2d at 608, 704 N.Y.S.2d 826;  People v. Brazzeal, 172 A.D.2d at 758, 761-762, 569 N.Y.S.2d 746;  People v. Cruz, 100 A.D.2d at 883, 474 N.Y.S.2d 142;  People v. Tufano, 69 A.D.2d at 827, 415 N.Y.S.2d 42).

The defendant's contention that the evidence was legally insufficient is unpreserved for appellate review and, in any event, is without merit.   The remaining contention raised in the defendant's supplemental pro se brief is similarly without merit.

In light of our determination, we need not reach the defendant's remaining contentions.