People v Pabon (Adres)

[*1] People v Pabon (Adres) 2007 NY Slip Op 50326(U) [14 Misc 3d 140(A)] Decided on March 1, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through November 26, 2007; it will not be published in the printed Official Reports.

Decided on March 1, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., McCooe, Schoenfeld, JJ
570496/04.

The People of the State of New York, Respondent

against

Adres Pabon, aka Andres Pabon, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Deborah Kaplan, J.), rendered July 29, 2004, after a jury trial, convicting him of criminal possession of a controlled substance in the seventh degree, and imposing sentence.

PER CURIAM:

Judgment of conviction (Deborah Kaplan, J.), rendered July 29, 2004, reversed, on the law, judgment vacated and accusatory information dismissed.

As the District Attorney candidly concedes, defendant's conviction must be reversed based upon the improper admission of hearsay evidence violating defendant's constitutional right of confrontation (see Crawford v Washington, 541 US 36 [2004]). The non-testifying coparticipant's response in handing over contraband after being asked by police to produce what defendant had given her was testimonial in nature, since the attendant circumstances objectively indicated that the primary purpose of the police interrogation was not to facilitate police assistance in the face of an ongoing emergency but "to establish or prove past events potentially relevant to later criminal prosecution." (Davis v Washington, 126 S. Ct. 2266 [2006]; see and compare People v Bradley, ___NY3d___, 2006 NY Slip Op 09501, filed Dec. 19, 2006). Thus, admission of this critical evidence as to the coparticipant's demonstrative response constituted a violation of defendant's Sixth Amendment confrontation rights, a violation which, on this record, cannot be considered harmless beyond a reasonable doubt (see People v Hardy, 4 NY3d 192, 198-199 [2005]).

Inasmuch as defendant has served his sentence, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition unopposed by the People.
This constitutes the decision and order of the court.
Decision Date: March 1, 2007