PEOPLE v. CRUZ, 70 N.Y.2d 733 (1987)

514 N.E.2d 384, 519 N.Y.S.2d 964

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. EULOGIO CRUZ, Appellant.

Court of Appeals of the State of New York.Argued September 9, 1987
Decided September 17, 1987

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Joseph A. Cerbone, J., Fred W. Eggert, J.

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Robert S. Dean and Philip L. Weinstein for appellant.

Mario Merola, District Attorney (Peter D. Coddington an Allen M. Hecht of counsel), for respondent.

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MEMORANDUM.

Upon reargument, following remand from the Supreme Court of the United States (see, Cruz v New York, 481 US ___, 107 S Ct 1714), the order of the Appellate Division should be reversed and a new trial ordered.

The Supreme Court having determined that the videotaped statement of codefendant Benjamin Cruz was improperly received in his joint trial with defendant Eulogio Cruz, remitted the matter to this court for further proceedings. We now determine that reception of the evidence was not harmless.

Insofar as the People now contend that the statement was admissible as a declaration against penal interest by Benjamin Cruz, probative of defendant’s guilt, it is sufficient to note that the statement was not offered at trial for that purpose and defendant has had no opportunity to challenge its reliabilit (see, People v Brensic, 70 N.Y.2d 9).

Chief Judge WACHTLER and Judges SIMONS, KAYE, TITONE, HANCOCK, JR., and BELLACOSA concur; Judge ALEXANDER taking no part.

Upon reargument, following remand from the Supreme Court of the United States, order reversed and a new trial ordered in a memorandum.