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

The PEOPLE, etc., Respondent, v. David GONSALVES, Appellant.


Decided: March 13, 2019

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ. Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Denise Pavlides of counsel), for respondent.


ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial in accordance herewith.

The defendant was convicted of robbery in the first degree, robbery in the second degree, robbery in the third degree, assault in the second degree, assault in the third degree, and petit larceny, upon a jury verdict, in connection with the robbery of Robert Fernandez at gunpoint inside a barbershop Fernandez owned in Brooklyn.  At trial, the People presented Fernandez's testimony that the robber was wearing a jacket with a hood over his head and a scarf covering his nose and mouth so that only his eyes, the bottom part of his forehead, and part of his nose were visible.  Fernandez further testified that the defendant, whom Fernandez knew as a former customer, was the person who robbed him, taking cash, his cell phone, and his keys.

We agree with the Supreme Court's denial of the defendant's application, made prior to jury selection, for a Rodriguez and a Wade hearing (see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149;  People v. Rodriguez, 79 N.Y.2d 445, 583 N.Y.S.2d 814, 593 N.E.2d 268;  People v. Foster, 217 A.D.2d 558, 629 N.Y.S.2d 275).

However, the Supreme Court should not have admitted into evidence, over the defendant's objection, Fernandez's testimony that the defendant's stepfather came to the barbershop several days after the robbery, to say he was “sorry” for what the defendant had done, to return Fernandez's keys, and to offer Fernandez a replacement cell phone.  There was no showing that the defendant participated in or was in any way connected to his stepfather's actions (see People v. Buzzi, 238 N.Y. 390, 398, 144 N.E. 653;  People v. Ya-ko Chi, 72 A.D.3d 709, 710, 898 N.Y.S.2d 619;  People v. Brooks, 292 A.D.2d 540, 541, 739 N.Y.S.2d 585).

We also exercise our interest of justice jurisdiction (see CPL 470.15[6][a] ) to reach the defendant's unpreserved contention that the testimony of an investigating detective recounting a conversation with an anonymous informant, a nontestifying witness, violated the defendant's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution (see U.S. Const Sixth Amend).  The informant reportedly was an eyewitness to the crime and identified the defendant by name.  The testimony “went beyond the permissible bounds of provid[ing] background information as to how and why the police pursued [the] defendant” (People v. Garcia, 25 N.Y.3d 77, 86, 7 N.Y.S.3d 246, 30 N.E.3d 137 [internal quotation marks omitted];  see People v. Rawlings, 178 A.D.2d 619, 577 N.Y.S.2d 493;  cf.  People v. Lowe, 166 A.D.3d 901, 88 N.Y.S.3d 214).

Since the evidence of guilt was not overwhelming, these errors were not harmless (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).  Accordingly, the defendant is entitled to a new trial.

Upon retrial, we remind the People that, on summation, a prosecutor may not “improperly encourage[ ] inferences of guilt based on facts not in evidence” (People v. Fisher, 18 N.Y.3d 964, 966, 944 N.Y.S.2d 453, 967 N.E.2d 676;  see People v. Powell, 165 A.D.3d 842, 84 N.Y.S.3d 563).  Here, there was no evidence to support the prosecutor's assertion that Fernandez had identified the defendant as the robber “immediately” by recognizing a distinctive “dot” on the defendant's face.

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


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