People v Ashley

People v Ashley 2007 NY Slip Op 07990 [44 AD3d 536] October 25, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

The People of the State of New York, Respondent,
v
Vincent Ashley, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York City (Katheryne M. Martone of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Jung Park of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered June 5, 2006, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of four years, unanimously reversed, on the law, and the matter remanded for a new trial.

The court improperly precluded defendant from calling a witness, as a sanction for defendant's failure to serve an alibi notice. The People correctly concede that it was an abuse of discretion to impose the drastic sanction of preclusion rather than offering the People a short adjournment pursuant to CPL 250.20 (3), in that defendant had not acted willfully or prejudiced the People, who were already aware of the witness's grand jury and suppression hearing testimony and her pedigree information. As the People also concede, the error was not harmless under the circumstances of the case. Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.