PEOPLE v. CIOFFI

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Kevin CIOFFI, appellant.

Decided: December 27, 2005

THOMAS A. ADAMS, J.P., GABRIEL M. KRAUSMAN, ROBERT A. SPOLZINO, and STEVEN W. FISHER, JJ. Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, LLP, New York, N.Y. (Herald Price Fahringer and Erica T. Dubno of counsel), and Felix T. Gilroy, Staten Island, N.Y., for appellant (one brief filed). Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered April 26, 2004, convicting him of falsifying business records in the first degree (nine counts) and conspiracy in the fifth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant allegedly conspired, together with others (see People v. White, 24 A.D.3d 801, 809 N.Y.S.2d 90 [decided herewith];  People v. F & S Auto Parts, Inc., 24 A.D.3d 795, 809 N.Y.S.2d 93 [decided herewith] ), to falsify various registers in order to facilitate the trafficking of stolen automobile parts.   After a joint trial with the other alleged conspirators, the defendant was convicted of conspiracy in the fifth degree, as well as numerous counts of falsifying business records in the first degree.

The defendant's challenge to the legal sufficiency of the evidence is unpreserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 However, the plea allocutions of 15 codefendants were testimonial statements, not subject to cross-examination, the trial court erred in admitting the allocutions (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177;  People v. Douglas, 4 N.Y.3d 777, 779, 793 N.Y.S.2d 825, 826 N.E.2d 796;  People v. Hardy, 4 N.Y.3d 192, 198, 791 N.Y.S.2d 513, 824 N.E.2d 953).   The specific objection the defendant now raises-that admission of the allocutions violated his Sixth Amendment right to confront witnesses against him-was not preserved for appellate review (see People v. Bones, 17 A.D.3d 689, 793 N.Y.S.2d 545;  People v. Rojas, 15 A.D.3d 211, 212, 790 N.Y.S.2d 431).   However, we reach this issue in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ).

 In view of the prosecutor's repeated reference to the allocutions in summation and his acknowledgment that they were central to the People's case (see People v. White, supra ), the error cannot be considered harmless beyond a reasonable doubt (see People v. Hardy, supra at 199, 791 N.Y.S.2d 513, 824 N.E.2d 953;  People v. Woods, 9 A.D.3d 293, 295, 779 N.Y.S.2d 494).   The evidence of the defendant's guilt was, moreover, not so overwhelming that there is no reasonable possibility that the error influenced the jury (see People v. Ryan, 17 A.D.3d 1, 6, 790 N.Y.S.2d 723;  cf. People v. Muhammad, 17 A.D.3d 139, 791 N.Y.S.2d 828, lv. denied 5 N.Y.3d 792, 801 N.Y.S.2d 813, 835 N.E.2d 673;  People v. Rojas, supra at 212, 790 N.Y.S.2d 431;  People v. Ruis, 11 A.D.3d 714, 784 N.Y.S.2d 558).

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

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