Opinion
March 11, 1996
Appeal from the County Court, Suffolk County (Corso, J.).
Ordered that the judgments are reversed, on the law, and a new trial is ordered.
The defendant correctly contends that the prosecutor's cross-examination violated his Sixth Amendment right of confrontation by using a confession by a nontestifying codefendant, who was tried separately. While the prosecutor did not attempt to introduce the entire confession into evidence, he repeatedly referred to and read from the statement, including portions which implicated the defendant. Those extensive references, the prosecutor's comments during summation, and the absence of a proper limiting instruction from the court invited the jury to consider the codefendant's confession for the truth of its contents as substantive evidence of the defendant's guilt (see, People v Brensic, 70 N.Y.2d 9, 19-20; People v Young, 70 N.Y.2d 9, 24-25; see also, Douglas v Alabama, 380 U.S. 415). The People did not demonstrate that the confession fell within any exception to the hearsay rule and the use of this hearsay evidence deprived the defendant of his rights under the Confrontation Clause (see, Lee v Illinois, 476 U.S. 530; Cruz v New York, 481 U.S. 186; Bruton v United States, 391 U.S. 123). The fact that the defendant's own statement was admitted into evidence did not validate the erroneous introduction of portions of the codefendant's confession (see, Cruz v New York, supra).
To the extent that the People now contend that the codefendant's statement was admissible as a declaration against penal interest, we note that that argument was not advanced in the County Court as the defendant's objections to the use of his codefendant's statement were overruled. Therefore, the defendant had no opportunity to challenge the reliability of the confession (see, People v Young, supra, at 22-23; People v Cruz, 70 N.Y.2d 733, 735; see also, People v Thomas, 68 N.Y.2d 194, cert denied 480 U.S. 948). Further, several portions of the statement relied on were not self-inculpatory, but directly implicated the defendant (see, People v Thomas, supra, at 198; People v Geoghegan, 51 N.Y.2d 45). The People's remaining contention as to this issue is without merit.
In this case, where the victim did not testify and the defendant contested the accuracy of his own statement as transcribed by the police, we cannot conclude that the error was harmless beyond a reasonable doubt (see, People v Eastman, 85 N.Y.2d 265; People v Hamlin, 71 N.Y.2d 750, 759-760).
In light of the foregoing determination, we do not address the defendant's remaining contentions. O'Brien, J.P., Santucci, Altman and Goldstein, JJ., concur.