Opinion
July 11, 1978
Judgment, Supreme Court, Bronx County, rendered May 15, 1975, convicting defendant, after a jury trial, of robbery in the second degree, unanimously reversed, on the law, and the matter remanded for a new trial. Defendant and one Robert Thomas were charged with, inter alia, robbery in the first degree and were tried together. Both gave statements to an Assistant District Attorney following their arrest. Both testified in their own behalf and were the only defense witnesses. The trial court erred in receiving the statement of codefendant Thomas into evidence without informing the jury that such statement did not constitute evidence against defendant Armstrong. Unlike defendant's statement, Thomas' statement implicated the defendant as well as himself in a robbery of the complainant. Although admissible against Thomas under the admission exception to the hearsay rule, Thomas' statement was inadmissible as to defendant since it was made outside of defendant's presence and after any joint enterprise had ended (People v Marshall, 306 N.Y. 223, 226; Richardson, Evidence [10th ed], § 232, pp 206-207). The absence of cautionary instructions to the jury and the repeated references, including references in summation, to the statements made by the defendant and Thomas without any distinction being made between these two statements, effectively deprived defendant of a fair trial (People v Oree, 22 A.D.2d 784). Inadmissible hearsay testimony that someone named "Ramona" said she knew or believed defendant was guilty was brought to the jury's attention. In summation, the prosecutor incorrectly asserted that defendant and Thomas had admitted to one Ellis that "they were involved" and that "they did it." The cumulative effect of these errors mandates that defendant be afforded a new trial.
Concur — Kupferman, J.P., Lupiano, Lane, Sandler and Sullivan, JJ.