Opinion
May 23, 1988
Appeal from the County Court, Suffolk County (Tisch, J.).
Ordered that the judgment is reversed on the law, and the indictment is dismissed, without prejudice to the People to represent any appropriate charges to another Grand Jury (see, People v Beslanovics, 57 N.Y.2d 726).
The defendant contends that it was reversible error to admit a coparticipant's hearsay statement implicating him in the burglary and the defendant's nonverbal response thereto. We agree. While an accused person's nonverbal reaction to an accusation of crime may be admissible under the adoptive admission exception to the hearsay rule (McCormick, Evidence § 270 [3d ed]), here, the People failed to lay the proper foundation for introducing the statement and defendant's demonstrative response on this ground (see, People v Lourido, 70 N.Y.2d 428, 433-434). Since the People did not demonstrate that the defendant's affirmative nod was intended by him to express the same proposition as that stated by the coparticipant, the admission of the coparticipant's hearsay statement violated the defendant's constitutional right of confrontation (US Const 6th Amend; N Y Const, art I, § 6; see, People v Sanders, 56 N.Y.2d 51, rearg denied 57 N.Y.2d 674). Furthermore, because the evidence of the defendant's guilt was not overwhelming, this error cannot be deemed harmless beyond a reasonable doubt (see, Chapman v California, 386 U.S. 18; People v Crimmins, 36 N.Y.2d 230, 237).
We have examined the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Thompson, Sullivan and Harwood, JJ., concur.