People v. Hardy

A police investigation of the shooting ensued. The police, however, failed to recover any physical evidence from the scene. A single latent fingerprint was recovered from the victims’ car. Subsequent analysis revealed that the print matched neither those of the victims nor of defendant. Video surveillance of the area revealed images of a light blue vehicle approach the Garcias and later depart. Mrs. Garcia initially gave a description of her attacker.^[1]

A confluence of investigative events ultimately led to defendant’s arrest. During the Beaver Dam investigation the police developed information connecting defendant to a local robbery at the home of Bristol and Loretta Francis (the Francis robbery). A 20 gauge shotgun was stolen from the victims’ home during this robbery. Additionally, the police connected defendant to the recent theft of a blue Oldsmobile, allegedly stolen a day or two before the Garcia attack. The police found the vehicle abandoned near defendant’s home. The gun and blue automobile were similar to those used in the Beaver Dam robbery.

Concomitantly, the police were investigating an unrelated robbery that occurred at a local Coastal gas station (the Coastal station robbery). A 20 gauge shotgun was used in that robbery as well. Defendant’s uncle—Vensel Daiquan Hardy—was one of two primary suspects in that robbery. Ultimately, as a result of the Coastal station investigation, the police recovered the 20 gauge shotgun stolen from the Francis home, and matching shotgun shells, from an abandoned white Oldsmobile. After the police recovered the weapon, Detective Pravetz of the Suffolk County Police Department interviewed defendant. Although the police had already recovered the weapon, Detective Pravetz questioned defendant as to the shotgun’s whereabouts. Defendant told the officer that his uncle, Vensel, had the weapon.

Finally, nine months after the Beaver Dam shooting, during the course of the investigation of another unrelated local home

Janerio elected to plead guilty to the robbery. In his plea allocution Janerio stated that he, along with another individual, robbed the Garcias, then retreated to “Daisy’s house” and divided the proceeds of the robbery. Defendant, however, proceeded to trial. Mrs. Garcia, testifying at the trial, was unable to identify defendant, but she described the circumstances surrounding the robbery and shooting. Her story matched the account Janerio Hardy gave in his plea allocution. The trial court, over defense counsel’s objection, permitted the People to read a redacted version of Janerio’s plea allocution into evidence. The People also called Robert Quarles to testify against defendant.^[2] Quarles indicated that he knew both defendant and Janerio, as friends. He testified that on November 6, 1998, the day of the Garcia shooting, he encountered both brothers at Daisy’s house. According to Quarles, defendant admitted to shooting a lady earlier that day.

In summation, the prosecutor made repeated reference to Janerio’s plea allocution. He also noted Quarles’ dubious credibility, stating that he “wouldn’t be so foolish as to presume that [the jury] might believe Robert Quarles’ testimony” without corroboration. The prosecutor argued to the jury that Janerio’s plea allocution “corroborates a great many offenses.” The prosecutor unequivocally told the jury that the allocution, “along with everything else, pulls it all together.”

The jury convicted defendant of attempted murder in the second degree, two counts of robbery in the first degree, two counts of assault in the first degree, and one count of robbery in the second degree. Following sentencing, defendant appealed. On appeal the Appellate Division modified defendant’s sentence and otherwise affirmed his conviction ( 1 AD3d 456 [2003]). A

Application of Crawford

Prior to the United States Supreme Court’s decision in Crawford v Washington ( 541 US 36 [2004]), it was well settled that statements against an individual’s penal interest, though hearsay, were nevertheless admissible as an exception to the hearsay rule, under certain circumstances. Specifically, in People v Thomas ( 68 NY2d 194 , 195 [1986]), we made clear that, “[statements contained in a plea allocution of a codefendant may, in limited circumstances, be received in evidence as a declaration against penal interest to establish an element of the crime charged against defendant.” It is now readily apparent, in light of Crawford, that Thomas no longer controls and must be overruled.

In Crawford, the Supreme Court departed from its own former jurisprudence and rejected the test it established in Ohio v Roberts ( 448 US 56 [1980]). The Roberts test allowed for the admission of certain statements, not subject to cross-examination, if those statements were found to be otherwise “rehable.” The Crawford court made clear that Roberts’ failure “to protect against paradigmatic confrontation violations” compelled its rejection ( 541 US at 60 ). Insofar as the Roberts test allowed judges to make reliability determinations, it was “fundamentally at odds with the right of confrontation” {id. at 61). Crawford therefore rejected Roberts and its progeny. Because this appeal was not yet final at the time the Supreme Court decided Crawford, defendant is entitled to invoke Crawford, and we are compelled to apply it (see Griffith v Kentucky, 479 US 314 , 328 [1987]).^[3]

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right “to be confronted with the witnesses against him.” This explicit constitutional command makes clear that ex parte testimonial statements are “reliable,” and therefore admissible, only when the accused has an opportunity to cross-examine the declarant (see Crawford,