the court erred in admitting in evidence the preliminary hearing testimony of the victim. Although the People demonstrated due diligence in attempting to locate the victim for trial (see People v Arroyo, 54 NY2d 567, 571, cert denied 456 US 979), the court unduly restricted defense counsel's cross-examination of the victim at the preliminary hearing, and thus the admission in evidence of the preliminary hearing testimony deprived defendant of his right of confrontation (see People v Simmons, 36 NY2d 126, 130-131).
Friday, January 2, 2009
Admission of Preliminary Hearing Testimony Held to Violate Defendant's Right to Confrontation
Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant's convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because