The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
This appeal raises the question whether a defendant can open the door to the admission of testimony that would otherwise be inadmissible under the Confrontation Clause of the United States Constitution. We hold that he can, and, in this case, he did.
On June 8, 2001, a man was shot dead at the door of an Albany apartment where marijuana was being sold. Neighborhood residents saw two young men running away from the area. Four rifle casings were found at the murder scene -- ammunition that is used in an AK-47 assault rifle. Four years later, in 2005, a friend with whom the victim had been watching television on the night of the murder identified Shahkene Joseph as a suspect, telling the police that Joseph had bought marijuana from the apartment shortly before the shooting. After further investigation, Joseph and defendant Lamarr Reid were arrested, and charged with murder in the second degree.
Joseph confessed to his involvement in the killing. He admitted that he and Reid had intended to rob residents of the apartment, that he saw the victim standing in the doorway, and that he and Reid fired their weapons through the door. In response to an omnibus motion by Reid, County Court severed Reid's and Joseph's trials, citing Bruton v United States (391 US 123 ).
During Reid's trial, the jury heard evidence concerning the events on
the night of the killing -- that Joseph visited the apartment before
the killing, asking to buy marijuana; that Joseph and Reid gave a
rifle or shotgun to a person who had once been in the same street gang
as Reid; and that Reid told this person that he had "caught a jux" and
"caught a vic," meaning that he had robbed someone. Two neighborhood
that they had seen "two young men running with hooded
sweat shirts" a block away from the crime scene.
The jury also heard that the day after the murder Reid told another acquaintance that "[h]e had caught a body" the previous night, i.e. that he had killed someone. Reid told this acquaintance that he had intended to carry out a robbery but met with resistance, that he had shot through the door or through the crack of the door, and that he had been with Shahkene Joseph and Charles McFarland. Reid said he had used a weapon he called the "Chopper," which the jury learned was the name given to a particular AK-47 rifle used by Reid's gang.
During cross-examination of this acquaintance, defense counsel had the witness confirm that McFarland himself had been present at this conversation. Defense counsel elicited that the witness had told the police about McFarland, and then asked him, "But you are aware that Charles McFarland has never been arrested for this, right? . . . Only Lamarr Reid and Shahkene Joseph, right?" -- to which the witness assented.*fn1
Reid himself testified, and the defense also called a detective and a
federal agent involved in the investigation. During direct examination
of the detective, defense counsel asked
questions designed to suggest that the investigation had
been inadequate, a theme first outlined in counsel's opening
statement. On direct examination of the federal agent, defense counsel
asked whether he had received information, during the course of his
investigation, that McFarland was involved in the shooting. The agent
agreed he had, and questioning followed concerning the source of that
information, during which defense counsel suggested that there was
more than one source.
On cross-examination of the agent, the prosecutor elicited that the information that McFarland had been present at the murder was from Reid's acquaintance "saying what he had heard, not what he had seen or anything." The prosecutor then said to the agent, "But in fact you also received eye witness testimony about who exactly was at the murder didn't you?" The agent responded in the affirmative. The prosecutor then added, "And that eye witness testimony was that Charles McFarland certainly wasn't there; isn't that true?" Again, the agent assented.
Defense counsel objected, arguing that no eyewitness had testified to seeing the men who had carried out the shooting and that the jury would infer that Shahkene Joseph was the eyewitness who had told the police "who exactly was at the murder." County Court overruled the objection, reasoning, inter alia, that defense counsel had "opened the door about McFarland being there."
The prosecutor introduced letters that Reid had written from prison. Most pertinently, the letters alluded to Joseph, whom Reid was trying to contact. They also contained a reference to "catch[ing] bodies," words similar to the expression Reid had been heard to use to describe the June 8, 2001 killing.
During summation, defense counsel returned to the theme that the police investigation had been inadequate and generated insufficient evidence. The jury was unpersuaded, finding Reid guilty of murder in the second degree (Penal Law § 125.25 ).
Reid filed a motion under CPL 330.30 seeking to set the verdict aside on several grounds, including the admission of testimony concerning an eyewitness to the crime who did not testify. County Court denied the motion, and Reid, duly convicted, was sentenced to imprisonment for 25 years to life.
Defendant appealed, raising a number of issues. The Appellate Division reversed County Court's judgment and ordered a new trial, holding that Reid's constitutional right to confront witnesses had been violated. "Because Joseph was unavailable and his pretrial statement to the police regarding who was present at the murder scene was testimonial, admission of that statement violated defendant's right to confront his accusers" (82 AD3d 1495, 1497-1498 [3d Dept 2011], citing Crawford v Washington, 541 US 36, 53-54 ; People v Rawlins, 10 NY3d 136, 147-148 ). The Appellate Division rejected the ...