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DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY A DETECTIVE’S TESTIM0NY ABOUT THE SUBSTANCE OF A STATEMENT ALLEGEDLY MADE BY A NONTESTYING ACCOMPLICE; THE ERROR WAS PRESERVED FOR APPEAL BY THE DEFENDANT HIMSELF, NOT DEFENSE COUNSEL, CITING CRAWFORD V WASHINGTON (SECOND DEPT),

The Second Department, reversing the murder conviction and ordering a new trial, in a full-fledged opinion by Justice Chambers, determined a detective’s testimony about what a nontestifying accomplice (Andy Dabydeen) said violated defendant’s right to confront the witnesses against him. Although defense counsel did not object to the detective’s testimony, the defendant himself objected after the fact, citing Crawford v Washington, 541 US 51, which preserved the issue for appeal:

After the defendant continued to deny any involvement in the murder, the detective confronted him by saying that “Andy had told us what had happened.” The detective further testified that, shortly thereafter, upon returning from the bathroom, the defendant reacted to that information by stating that he could not believe that Dabydeen had “snitched” on him. …

… [W]e find that the defendant’s objection—albeit made after the detective had finished testifying and the People had rested—was sufficiently specific to draw the Supreme Court’s attention to the Sixth Amendment Confrontation Clause problems attendant to the People’s use, as part of their case-in-chief, of Dabydeen’s out-of-court testimonial statement directly implicating the defendant in the murder. …

This is not to suggest that the People are precluded from giving some context to the defendant’s statement that Dabydeen had “snitched” on him. We merely emphasize that the People could have done so without disclosing the substance of Dabydeen’s incriminating statement … . People v Lockley, 2021 NY Slip Op 06192, Second Dept 11-10-21

 

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