Opinion
July 27, 1981
Appeal by defendant from a judgment of the County Court, Nassau County (Doolittle, J.), rendered December 21, 1978, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. We agree with the defendant's contention and the People's concession that the defendant's confession made to Detective Spitzer should have been suppressed and not admitted at trial, for it was obtained in violation of his right to counsel (see People v. Kazmarick, 52 N.Y.2d 322; People v. Cunningham, 49 N.Y.2d 203; People v. Rogers, 48 N.Y.2d 167). We cannot agree with the People's contention, however, that there was no reasonable possibility that its admission might have contributed to defendant's conviction and that it was thus harmless beyond a reasonable doubt (see Chapman v. California, 386 U.S. 18; Fahy v Connecticut, 375 U.S. 85; People v. Crimmins, 36 N.Y.2d 230). Though the testimony of the People's eyewitnesses may constitute overwhelming evidence of defendant's guilt, that alone is not enough to characterize the improper admission of the confession as harmless; it is merely the threshold level that must be reached before a consideration of whether or not there is a reasonable possibility that the confession contributed to defendant's conviction (see People v. Crimmins, supra). In view of the nature of the testimony adduced at trial and that identification was, perhaps, the single issue pervading the trial, it is not unreasonable that the jury could very well have considered the confession in resolving any doubts it may have had concerning defendant's identification. Gulotta, J.P., Cohalan, O'Connor and Thompson, JJ., concur.