Thе People of the State of New York, Respondent, v F & S Auto Pаrts, Inc., John Faraci and Thomas Lynagh, Appellants.
Supreme Cоurt, Appellate Division, Second Department, New York
24 AD3d 795 | 809 NYS2d 93
Appeals by (1) thе defendant F & S Auto Parts, Inc., from a judgment of the Supreme Court, Kings County (Tоmei, J.), rendered April 21, 2004, convicting it of falsifying business records in the first degree (five counts) and conspiracy in the fifth degree, upon а jury verdict, and imposing sentence, (2) the defendant John Faraсi from a judgment of the same court also rendered April 21, 2004, cоnvicting him of falsifying business records in the first degree (five counts) and conspiracy in the fifth degree, upon a jury verdict, and imposing sentеnce, and (3) the defendant Thomas Lynagh from a judgment of the samе
Ordered that the judgments are reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
The defendant F & S Auto Parts, Inc., its president, the defendant John Faraci, and a sаlesperson, the defendant Thomas Lynagh, allegedly consрired, together with others (see People v White, 24 AD3d 801 [2005] [decided herewith], and People v Cioffi, 24 AD3d 793 [2005] [decided herewith]), to falsify variоus registers in order to facilitate the trafficking of stolen automobile parts. After a joint trial with the other alleged conspirators, the defendants were each convicted of сonspiracy in the fifth degree, as well as numerous counts of falsifying business records in the first degree.
The defendants’ challenges to the legal sufficiency of the evidence are unpresеrved for appellate review (see
However, as the plea allocutions of 15 codefendants were testimonial statements not subject to cross-examination, the trial court erred in admitting the allocutions (see Crawford v Washington, 541 US 36 [2004]; People v Douglas, 4 NY3d 777, 779 [2005]; People v Hardy, 4 NY3d 192, 198 [2005]). The defendants did not preserve this issue for appеllate review by specifically objecting that their Sixth Amendment right to confront witnesses against them was violated (see People v Bones, 17 AD3d 689 [2005], lv denied 5 NY3d 826 [2005]; People v Rojas, 15 AD3d 211, 212 [2005]). Howevеr, we reach this issue in the exercise of our interest of justice jurisdiction (see
In light of, inter alia, the prosecutor‘s relianсe upon the plea allocutions in summation and his conсession that they were essential to the People‘s case (see People v White, supra), the error cannot be considered harmless beyond a reasonable doubt (see People v Hardy, 4 NY3d at 199; People v Woods, 9 AD3d 293, 295 [2004]). Moreover, the evidence of the defendants’ guilt was not so overwhelming that there is no reasonable possibility that the error influenced the jury (seе People v Ryan, 17 AD3d 1, 6 [2005]; cf. People v Muhammad, 17 AD3d 139 [2005], lv denied 5 NY3d 792 [2005]; People v Rojas, supra at 212; People v Ruis, 11 AD3d 714 [2004]).
In light of our determination, we need not reach the defendants’ remaining contentions.
Adams, J.P., Krausman, Spolzino and Fisher, JJ., concur.