reasonable possibility error in New York

1988In light of the foregoing, we cannot deem harmless the erroneous admission into evidence of the statement of the codefendant since there is a reasonable possibility that the error contributed to the conviction (see, People v Crimmins, 36 NY2d 230, 241 ; People v Rodriguez, 138 AD2d 643 ; People v Latif, 135 AD2d 736 ).

1988Based upon all of the foregoing we cannot deem harmless the admission into evidence of the statements of the codefendant since there is a reasonable possibility that the error might have contributed to the conviction (see, People v Crimmins, 36 NY2d 230, 241 ; People v Latif, supra).

1982In this connection, the court in the Grant case held as follows (pp 379-380): “When the conviction is based on a plea — instead of a verdict — the question must at least be reformulated to determine whether there is a reasonable possibility that the error contributed to the plea (cf. People v Ramos, 40 NY2d 610, 618-619 , supra).

1979The court stated (supra, pp 377-378): "In no case where the defendant has pleaded guilty have we held that an erroneous denial of a pretrial motion to suppress was harmless error (cf. People v Ramos, supra [ 40 NY2d 610, 618-619 ]) * * * Because harmless error rules were formulated to review trial verdicts, they are difficult to apply to guilty pleas.” The court then stated (supra, pp 379-380): "When the conviction is based on a plea—instead of a verdict—the question must at least be reformulated to determine whether there is a reasonable possibility that the error contributed to the plea (cf.

2022The error in admitting the CJA form was not harmless beyond a reasonable doubt because the evidence of the defendant's guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant's conviction ( see People v Crimmins , 36 NY2d 230, 237 ; People v Markman , 83 AD2d 644 ; People v MacKenzie , 78 AD2d 892 ).

2016The error in admitting the defendant’s statement was not harmless beyond a reasonable doubt because the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Jones, 47 NY2d 528 [1979]; People v Markman, 83 AD2d 644 [1981]; People v MacKenzie, 78 AD2d 892 [1980]; People v Brathwaite, 76 AD2d 931 [1980]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

2022The error in admitting the CJA form was not harmless beyond a reasonable doubt because the evidence of the defendant's guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant's conviction ( see People v Crimmins , 36 NY2d 230, 237 ; People v Markman , 83 AD2d 644 ; People v MacKenzie , 78 AD2d 892 ).

2016The error in admitting the defendant’s statement was not harmless beyond a reasonable doubt because the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Jones, 47 NY2d 528 [1979]; People v Markman, 83 AD2d 644 [1981]; People v MacKenzie, 78 AD2d 892 [1980]; People v Brathwaite, 76 AD2d 931 [1980]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

2013Under these circumstances, the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Schaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912 [2012]).

2013Under these circumstances, the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Schaeffer, 56 NY2d 448, 454 [1982]; People v Dunbar, — AD3d —, 2013 NY Slip Op 00505 [2013] [decided herewith]; People v Harris, 93 AD3d 58, 71 [2012], affd 20 NY3d 912 [2012]).

2023To require defendant to request anything further beyond the court's order to disclose all relevant impeachment material imposes too great a burden, as it would effectively require defendant to identify every conceivable form of evidence that would allow for impeachment; rather, the burden lies with the People to provide such evidence under Brady ( see generally People v Rong He , 34 NY3d 956 , 958 [2019]; People v Auleta , 82 AD3d 1417 , 1420 [3d Dept 2011], lv denied 17 NY3d 813 [2011]; People v Phillips , 55 AD3d 1145, 1149 [3d Dept 2008], lv denied 11 NY3d 899 [2008]).

2023To require defendant to request anything further beyond the court's order to disclose all relevant impeachment material imposes too great a burden, as it would effectively require defendant to identify every conceivable form of evidence that would allow for impeachment; rather, the burden lies with the People to provide such evidence under Brady ( see generally People v Rong He , 34 NY3d 956 , 958 [2019]; People v Auleta , 82 AD3d 1417 , 1420 [3d Dept 2011], lv denied 17 NY3d 813 [2011]; People v Phillips , 55 AD3d 1145, 1149 [3d Dept 2008], lv denied 11 NY3d 899 [2008]).

2023To require defendant to request anything further beyond the court's order to disclose all relevant impeachment material imposes too great a burden, as it would effectively require defendant to identify every conceivable form of evidence that would allow for impeachment; rather, the burden lies with the People to provide such evidence under Brady ( see generally People v Rong He , 34 NY3d 956 , 958 [2019]; People v Auleta , 82 AD3d 1417 , 1420 [3d Dept 2011], lv denied 17 NY3d 813 [2011]; People v Phillips , 55 AD3d 1145, 1149 [3d Dept 2008], lv denied 11 NY3d 899 [2008]).

2022We therefore modify the judgment by reversing those parts convicting defendant under counts one, three, four, six, and eight of the indictment ( see generally People v Purdy , 106 AD3d 1521 , 1523 [4th Dept 2013]), and by dismissing counts three, four, six, and eight of the indictment inasmuch as those are misdemeanor counts and defendant has already completed the sentence imposed on them ( see People v Smouse , 160 AD3d 1353 , 1356 [4th Dept 2018]), and we grant a new trial on count one of the indictment ( see Collins , 145 AD3d at 1480 ).

2022We therefore modify the judgment by reversing those parts convicting defendant under counts one, three, four, six, and eight of the indictment ( see generally People v Purdy , 106 AD3d 1521 , 1523 [4th Dept 2013]), and by dismissing counts three, four, six, and eight of the indictment inasmuch as those are misdemeanor counts and defendant has already completed the sentence imposed on them ( see People v Smouse , 160 AD3d 1353 , 1356 [4th Dept 2018]), and we grant a new trial on count one of the indictment ( see Collins , 145 AD3d at 1480 ).

2019Since we are remitting the matter to the Supreme Court, Queens County, for a new trial, we note that the court should have granted the defendant's request for a limiting instruction as to the proper use of statements made by Espinal to the defendant during a controlled phone call ( see People v Harris , 19 NY3d 679, 686 ; People v Negrin , 140 AD3d 1192, 1193 ).

2019Since we are remitting the matter to the Supreme Court, Queens County, for a new trial, we note that the court should have granted the defendant's request for a limiting instruction as to the proper use of statements made by Espinal to the defendant during a controlled phone call ( see People v Harris , 19 NY3d 679, 686 ; People v Negrin , 140 AD3d 1192, 1193 ).

2016The error in admitting the defendant’s statement was not harmless beyond a reasonable doubt because the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Jones, 47 NY2d 528 [1979]; People v Markman, 83 AD2d 644 [1981]; People v MacKenzie, 78 AD2d 892 [1980]; People v Brathwaite, 76 AD2d 931 [1980]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

2016The error in admitting the defendant’s statement was not harmless beyond a reasonable doubt because the evidence of the defendant’s guilt, without reference to the error, was not overwhelming, and there was a reasonable possibility that the error might have contributed to the defendant’s conviction (see People v Jones, 47 NY2d 528 [1979]; People v Markman, 83 AD2d 644 [1981]; People v MacKenzie, 78 AD2d 892 [1980]; People v Brathwaite, 76 AD2d 931 [1980]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]).

2011The possibility that the jury was influenced by testimony regarding an eyewitness was demonstrated by its request for a read-back of the investigator’s “testimony regarding eye witness or witnesses regarding any eye witness statement.” Because the evidence was less than overwhelming and there is a reasonable possibility that the improper mention of an eyewitness statement in violation of defendant’s right of confrontation may have contributed to the jury’s verdict, the error was not harmless (see People v Hardy, 4 NY3d at 198-199; People v Nesbitt, 77 AD3d at 856 ).

2010Furthermore, since the evidence against the defendant was not overwhelming and there is a reasonable possibility that this error contributed to the verdict of guilt, it cannot be deemed harmless (see People v Sampel, 16 AD3d 1023 [2005]; see generally People v Grant, 7 NY3d 421 [2006]; People v Crimmins, 36 NY2d 230 [1975]).