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Less then a year after the U.S. Supreme Court erased precedent on Confrontation Clause jurisprudence, the New York Court of Appeals followed suit Thursday. In a unanimous opinion, the judges in Albany, N.Y., said that in light of Crawford v. Washington, 124 S. Ct. 1354, they have no choice but to declare invalid their own precedent on the use of a co-defendant’s plea allocation. The court backed away from its 1986 holding in People v. Thomas, 68 NY2d 194, and said judges can no longer admit testimonial hearsay statements, such as the plea allocution of a co-defendant who is not available for cross examination. But the state court also made clear that the matter is subject to harmless error analysis. People v. T.J. Charles Hardy, 11, and People v. Tracey Douglas, 12, provided the court with its first opportunity to apply the new principles and standards articulated in Crawford to a New York state prosecution. Both cases involved defendants who were convicted with the aid of statements made by co-defendants during a plea allocution. Hardy arose out of Suffolk County, N.Y., where defendant T.J. Charles Hardy was convicted of attempted murder and related charges. His brother pleaded guilty but refused to testify against Hardy. The court granted a prosecution motion to introduce the minutes of the brother’s plea allocution. Douglas stemmed from an October 2000 mugging in upper Manhattan. Tracey Douglas’ accomplices plea bargained. The plea allocution of one of the accomplices was introduced in Douglas’ trial and he was convicted of first- and second-degree robbery. Appellate courts upheld both convictions. Douglas was granted leave by Judge Susan Phillips Read. Judge Carmen Beauchamp Ciparick granted leave to Hardy. Yesterday, the Court of Appeals overturned Hardy’s conviction. However, while Douglas’ trial suffered a similar infirmity, the court upheld his conviction because the evidence was overwhelming and the error was harmless. Writing for the court in Hardy, Ciparick observed that before Crawford, “it was well settled that statements against an individual’s penal interest, although hearsay, were nevertheless admissible … under certain circumstances.” Those days, however, are gone, the court said. “It is now readily apparent, in light of Crawford, that Thomas no longer controls and must be overruled,” Ciparick wrote. Significantly, the court found, however, that the improper admission of testimonial hearsay evidence is subject to harmless error scrutiny. In that vein, it said Hardy is entitled to a new trial since the error was not proven harmless beyond a reasonable doubt. In Douglas’ case, however, “there is no reasonable possibility that the error affected the jury’s verdict,” the court said. Appearing in Hardy were Charles W. Manning of the Legal Aid Society of Suffolk County and Suffolk County Assistant District Attorney Glenn Green. Margaret E. Knight of the Office of the Appellate Defender represented the defendant in Douglas. Manhattan Assistant District Attorney Karen Schlossberg argued for the prosecution.

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