Friday, December 08, 2006

AD4: failure to give "limiting instruction with respect to the statement of a nontestifying codefendant" is fundamental error requiring reversal

People v Pichardo, 2006 NY Slip Op 08390 [available here]

At his trial on drug charges, the People offered and the trial court received the statement of a non-testifying co-defendant as evidence against defendant. No limiting instruction was requested, and none was given. Characterizing the failure to give a limiting instruction in this situation as "fundamental error", the Fourth Department reversed even though the instruction was not requested at trial by the defendant. From the decision:

Reversal is required, however, because Supreme Court failed to give a limiting instruction with respect to the statement of a nontestifying codefendant. Even assuming, arguendo, that the statement was admissible, we note that, as the Supreme Court has written, "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Although defendant did not request a limiting instruction, we conclude under the circumstances of this case that the failure to give such an instruction is a fundamental error that warrants reversal and a new trial.

(Pichardo, 2006 NY Slip Op 08390.)

From a Court usually as preservation-minded as the Fourth Department, it is nice to see a decision characterizing this error as fundamental and therefore not requiring preservation for review.