This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 40
The People &c.,
            Respondent,
        v.
Richard Garcia,
            Appellant.
-----------------------
No. 41
The People &c.,
            Respondent,
        v.
Joshue DeJesus,
            Appellant.




Case No. 40:
          Amanda Rolat, for appellant.
          David P. Johnson, for respondent.
Case No. 41:
          Abigail Everett, for appellant.
          Alice Wiseman, for respondent.




FAHEY, J.:
          From these otherwise unrelated criminal appeals arises
the question whether the introduction of purported "background


                              - 1 -
                                - 2 -                  Nos. 40 & 41

and narrative" evidence through the testimony of police
detectives violated defendants' right to confrontation.
                           People v Garcia
          At approximately 8:30 p.m. on August 20, 2005, Michael
Colon was shot to death following a streetside argument.    With
respect to that incident defendant was charged by indictment
with, inter alia, one count each of murder in the second degree
(Penal Law § 125.25 [1]) and manslaughter in the first degree (§
125.20 [1]).
          Although there were approximately 15 people in the area
of the argument, only one eyewitness testified at the ensuing
jury trial.    On direct examination the eyewitness recalled that,
during an argument he was having with Colon, defendant pointed a
gun at Colon and fired three to four shots at him.   The
eyewitness ran to her automobile after the first shot was fired
but, in the meantime, she observed that Colon had grabbed his
chest and fallen to the "floor."   The eyewitness acknowledged
that she was contacted by the police nearly two years after the
shooting, on June 19, 2007.   On that date the eyewitness
identified defendant as the shooter in a lineup.
          The lineup was the second police attempt to have the
eyewitness identify the shooter.   Cross-examination revealed
that, a few days after the shooting, the eyewitness went to a
precinct house, whereupon police showed her a photo array.    The
eyewitness did not identify defendant's photograph in that array,
and she explained that "in the pictures" defendant "looked

                                - 2 -
                                   - 3 -                 Nos. 40 & 41

different" from how he appeared in person.     The eyewitness stated
that she declined to identify the shooter because she was "more
comfortable seeing . . . the person in person because in the
picture they looked different,” and she was fearful of
identifying the wrong person.
          The People's case turned to the police investigation of
the shooting and the testimony of the lead detective.      The
detective initially noted that the police did not make an arrest
in 2005 or 2006.    He then described an August 21, 2005 meeting he
had with Colon's sister.      Over defendant's general objection, the
prosecutor engaged the detective in this exchange:
                    "Q. And without telling us
          specifically what you talked about, . . . did
          [Colon's sister] assist you in your
          investigation of this case?
                      "A.     Yes, she did.
                    "Q. And did she tell you whether
          [Colon] was having a problem with anyone in
          particular?
                      "A.     Yes, she did.
                      "Q.     Who was that?
                      * * *
                      "A.     [Defendant]."

          The detective further testified that Colon's sister had
also told him that defendant and Colon had known each other for
"quite awhile."    Defendant objected that "[w]e don't have that
witness here."    The court overruled the objection.   That


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                                - 4 -                  Nos. 40 & 41

testimony preceded the detective's explanation of the police
investigation of the shooting, which culminated in the arrest of
defendant on June 19, 2007.
            The People's case established that Colon was killed by
a single gunshot.    The People, however, had neither the gun at
issue nor any physical evidence linking defendant to the
shooting.   Consequently, their case hinged on the eyewitness's
identification of the shooter and the hearsay testimony of the
detective as to the reported strife between Colon and defendant.
At a charge conference the court denied defendant's motion
seeking either the striking of the detective's testimony as to
conflict between defendant and Colon or, in the alternative, the
delivery of an instruction directing the jury to disregard that
testimony on the ground that it was "pure hearsay."    The jury
convicted defendant of manslaughter in the first degree (Penal
Law § 125.20 [1]).
            On appeal, the Appellate Division declined to disturb
the conviction, concluding, in relevant part, that defendant's
objection to the disputed parts of the detective's testimony "did
not preserve [defendant's] Confrontation Clause claim" and, in
the alternative, that there was "no Confrontation Clause
violation[] because the evidence was admissible for a legitimate
purpose other than its truth" (113 AD3d 553, 554 [2014]).    After
acknowledging that the trial court should have given a limiting
instruction with respect to the disputed testimony, the Appellate


                                - 4 -
                               - 5 -                    Nos. 40 & 41

Division also concluded that "any error in receiving the evidence
or in failing to deliver [such an] instruction was harmless,
because neither the evidence nor the absence of an instruction
could have affected the verdict" (id.).     A Judge of this Court
granted leave to appeal (22 NY3d 1198 [2014]).     We now reverse
and order a new trial.
                         People v DeJesus
          During the early morning hours of June 9, 2006, Julio
Montez was shot to death following a dispute outside a
neighborhood bar.   Defendant was charged by indictment with one
count of murder in the second degree (Penal Law § 125.25 [1]).
          At pretrial motion in limine the People sought to
introduce evidence that Montez's family had called the police 12
hours after the shooting to report their receipt of an anonymous
phone call identifying the shooter as a person named “Joshua” who
lived with his grandparents at a certain Manhattan address.
According to the prosecutor, that information was relevant not
for the truth of the matter asserted, but to show “why the police
focused in on . . . defendant and how they came to put his photo
in a photo array, how they came to show it to witnesses, [and
how] defendant was a suspect from the day the actual homicide
took place."   Following defendant’s point that such evidence
would be purely prejudicial, the court ruled that the prosecutor
could ask, “based on your investigation on that day, did you have
a suspect in mind,” without mention of the subject phone call.


                               - 5 -
                                - 6 -                  Nos. 40 & 41

            The matter subsequently proceeded to a jury trial
where, similar to Garcia, the identification of defendant as the
shooter was premised upon the testimony of a single eyewitness.
In this case, that eyewitness, a longtime friend of Montez,
testified as to having frequently seen defendant "hanging out" in
the neighborhood in which Montez, the eyewitness, and defendant
lived.    He also saw defendant shoot Montez following the tavern
quarrel.    The shooting occurred at approximately 3:45 a.m. on
June 9, 2006.    The eyewitness called 911 for medical and police
assistance.    Montez died at a hospital approximately two hours
later.
            A police detective obtained a list of the telephone
numbers that were used to call 911 concerning the shooting.
Using the list, that detective contacted the eyewitness at about
4:50 a.m. on the morning of the shooting.    At that point, the
frightened eyewitness did not want to be "involved" in the
matter.    He told the detective that he did not see the shooting
and made no mention of defendant's presence at the scene of that
incident.
            At least two more detectives became involved in the
investigation of the shooting later that morning, and one of
those detectives eventually interviewed the eyewitness at
approximately 7:00 p.m. on the evening of that incident.    At that
juncture the eyewitness gave a physical description of the
shooter and indicated that he could identify the shooter, whom he


                                - 6 -
                                 - 7 -                    Nos. 40 & 41

recognized from the neighborhood.       Then, at approximately 10:00
p.m. that evening, the eyewitness was shown a photo array from
which he identified defendant as the shooter.
          The means by which the police identified defendant as a
suspect are at the core of our inquiry here.      Over defendant's
objection, the detective who conducted the 7:00 p.m. interview
testified in this colloquy that he began to look for defendant at
4:00 p.m. on the afternoon of the shooting as a result of that
detective's investigatory work and without having spoken to the
eyewitness:
                    “Q. Did there come a time . . . on
          June 9th of 2006 that you were looking for a
          specific suspect relating to the shooting
          death of [Montez]?
                    * * *
                    "A.     Yes . . . ."
                    “Q. And what was the name of the
          person you were looking for?
                    * * *
                    “A.     [Defendant].
                    * * *
                    “Q. And I may have asked you this:
          What time on June 9th did you begin
          specifically looking for a person by the name
          of [defendant]?
                    * * *
                    “A.     4:00 P.M.
                    “Q. And without telling us
          specifically, was that as a result of your
          investigation that you began looking for . .

                                 - 7 -
                                - 8 -                 Nos. 40 & 41

          . defendant . . .?
                     “A.   Yes . . . .
                    “Q. And at the point that you had
          a specific suspect that you were looking for
          in connection with the shooting [death] of
          [Montez], had you spoken to [the eyewitness]?
                     "A.   No . . . ."
          Defendant later moved for a mistrial based on the
foregoing testimony, contending that it violated his right to
confrontation insofar as it amounted to an unsworn statement from
an anonymous source identifying defendant as the shooter.    The
court ultimately denied the motion, and by then the jury had
returned a verdict convicting defendant of murder in the second
degree (Penal Law § 125.25 [1]).
          The Appellate Division affirmed, concluding, inter
alia, that the "brief, limited testimony that defendant was
already a suspect at the time the [eye]witness was interviewed
did not violate the Confrontation Clause" inasmuch as that
"evidence was offered not for its truth, but for the legitimate
nonhearsay purposes of[, inter alia,] completing the narrative,
explaining police actions, providing the context of the [police]
interview [of the eyewitness], . . . and preventing jury
speculation" (105 AD3d 476, 476 [2013] [internal citation
omitted]).   A Judge of this Court granted leave to appeal (22
NY3d 1198 [2014]).   We now affirm.
                               Analysis
                                  I.

                                - 8 -
                               - 9 -                  Nos. 40 & 41

           “Under the Sixth Amendment of the Federal Constitution
and article I, § 6 of the State Constitution, a criminal
defendant has the right to be confronted with the witnesses
against him or her (see US Const Amend VI; NY Const, art I, § 6;
Delaware v Van Arsdall, 475 US 673, 678 [1986]; People v Rawlins,
10 NY3d 136, 146 [2008])" (People v Smart, 23 NY3d 213, 219
[2014]).   Indeed, the federal Confrontation Clause bars
"admission of testimonial statements of a witness who did not
appear at trial," unless that witness was unavailable to testify
and the defendant had a prior opportunity to cross-examine him or
her (Crawford v Washington, 541 US 36, 53-54 [2004]; see People v
Pealer, 20 NY3d 447, 453 [2013], cert denied ___ US ___, 134 S Ct
105 [2013]).   "[A] statement will be treated as testimonial only
if it was 'procured with a primary purpose of creating an out-of-
court substitute for trial testimony' " (id., quoting Michigan v
Bryant, 562 US 344, ___, 131 S Ct 1143, 1155 [2011]) and, "[i]f a
different purpose underlies its creation, the issue of
admissibility of the statement is subject to federal or state
rules of evidence" (Pealer, 20 NY3d at 453).   Our precedent
teaches that "two factors . . . are 'especially important' in
resolving whether to designate a statement as testimonial---
'first, whether the statement was prepared in a manner resembling
ex parte examination and second, whether the statement accuses
defendant of criminal wrongdoing' " (id., quoting People v
Rawlins, 10 NY3d 136, 156 [2008], cert denied sub nom Meekins v


                               - 9 -
                                - 10 -                 Nos. 40 & 41

New York, 557 US 934 [2009]).    "[T]he 'purpose of making or
generating the statement, and the declarant's motive for doing
so,' also 'inform [those] two interrelated touchstones' "
(Pealer, 20 NY3d at 453, quoting Rawlins, 10 NY3d at 156).
          But this is not to say that testimonial statements are
invariably intolerable at trial.    The federal Confrontation
Clause "does not bar the use of testimonial statements for
purposes other than establishing the truth of the matter
asserted" (Crawford, 541 US at 59 n 9, citing Tennessee v Street,
471 US 409, 414 [1985]).1   Moreover, subject to the exercise of a
court's discretion, otherwise inadmissible evidence that
“provide[s] background information as to how and why the police
pursued and confronted [a] defendant” (People v Tosca, 98 NY2d
660, 661 [2002]) may be admitted to help a jury understand a case
in context “if the evidence’s probative value in explaining the
[pursuit] outweighs any undue prejudice to the defendant,” and if
the evidence is accompanied by a “ ‘proper limiting
instruction[]' ” (People v Morris, 21 NY3d 588, 596 [2013],
quoting People v Resek, 3 NY3d 385, 389 [2004]).    We now apply



     1
          Crawford interpreted the federal Confrontation Clause,
but the federal and state Confrontation Clauses are "virtually
identical" (People v Bradley, 8 NY3d 124, 126 [2006]). The
federal clause states that "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him" (US Const Amend VI), while the state
clause provides that "[i]n any trial in any court whatever the
party accused shall . . . be confronted with the witnesses
against him or her" (NY Const, art I, § 6).

                                - 10 -
                              - 11 -                  Nos. 40 & 41

those principles to the facts before us.


                                II.
           Garcia's contention with respect to the alleged
violation of his confrontation rights is preserved for our review
(see CPL 470.05 [2]), and it has merit.2   In Garcia, the
detective's testimony as to his conversation with Colon's sister
went beyond the permissible bounds of "provid[ing] background
information as to how and why the police pursued . . . defendant"
(Tosca, 98 NY2d at 661).   The detective's remark that Colon's
sister had said that there was friction between defendant and
Colon indisputably was a testimonial statement inasmuch as it was
procured for the primary purpose of creating an out-of-court
substitute for the testimony of Colon's sister regarding that
discord (see generally Pealer, 20 NY3d at 453).   The testimony as
to that friction, which arguably gave a motive for the shooting,
exceeded that which was necessary to explain the police pursuit
of defendant.   It should not have been countenanced by the trial
court.   Inasmuch as Garcia turned on the identification of
defendant by a single eyewitness, who was not well-acquainted
with defendant and who did not identify him until two years after
the crime, we cannot conclude that the error in admitting that
testimony in evidence is harmless (see generally People v

     2
          We note that, even if defendant’s constitutional
contention is unpreserved, as the People suggest, we would reach
the same result with respect to the merits based on our state
evidentiary hearsay rules.

                              - 11 -
                               - 12 -                  Nos. 40 & 41

Eastman, 85 NY2d 265, 277-278 [1995]; cf. People v Kello, 96 NY2d
740, 744 [2011]).
          Even assuming, arguendo, the detective's statements as
to the discord between defendant and Colon merely provided
background as to the police pursuit of defendant and were
properly admitted in evidence for that purpose, reversal would
still be required.   It is obvious, if not uncontested, that the
subject testimony should have been tempered by a " 'a proper
limiting instruction[]' " (Morris, 21 NY3d at 596, quoting Resek,
3 NY3d at 389).   In the absence of a curative instruction the
prosecutor offered what we characterize here as a curative
argument on summation.   Specifically, the prosecutor contended
that the detective's testimony as to what Colon's sister had said
that Colon had told her was not "introduced for the truth of the
matter asserted."    That argument, however, is no substitute for a
proper curative or limiting charge inasmuch as " '[a]rguments of
counsel cannot substitute for instructions by the court' "
(Carter v Kentucky, 450 US 288, 304 [1981], quoting Taylor v
Kentucky, 436 US 478, 489 [1978]).
          In any event, under the circumstances of this case, the
failure to temper that testimonial evidence with a proper
curative instruction is not harmless even under the standard
applicable to non-constitutional harmless error (see generally




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                                - 13 -                 Nos. 40 & 41

People v Crimmins, 36 NY2d 230, 241-242 [1975]).3
                                 III.
          People v DeJesus presents different circumstances.
There, when asked whether there came a time on June 9, 2006 when
the police began to look for a specific suspect in relation to
the death of Montez, the subject detective merely agreed that the
police "beg[a]n specifically looking for [defendant]" at 4:00
p.m. that afternoon without having "spoken to [the eyewitness]."
There is no basis to characterize that statement as testimonial--
-it simply is not an out-of-court substitute for trial testimony
(see Pealer, 20 NY3d at 453).    We thus conclude that there is no
merit to defendant's contention that his confrontation rights
were violated.4
          Further, we conclude that DeJesus is not a case in
which there was an inferential breach of defendant's
confrontation rights.   The United States Court of Appeals for the
Second Circuit has ruled that "[t]he relevant question [in
determining whether testimony contains an implicit accusation and
thus is testimonial] is whether the way the prosecutor solicited
the testimony made the source and content of the conversation

     3
          Garcia also contends that the evidence is legally
insufficient to support his conviction, but that contention is
not preserved for our review (see People v Gray, 86 NY2d 10, 19
[1995]).
     4
          In so concluding, we note that, as we read the record
and his main brief, defendant articulated on appeal contentions
with respect to both the federal and state Confrontation Clauses
that are preserved for our review (see CPL 470.05 [2]).

                                - 13 -
                                - 14 -                  Nos. 40 & 41

clear" (Ryan v Miller, 303 F3d 231, 250 [2d Cir 2002]; see United
States v Dukagjini, 326 F3d 45, 56-57 [2d Cir 2003]).     Even
assuming, arguendo, that the Ryan litmus test applies here, we
conclude that there was no violation of defendant's confrontation
rights.   Defense counsel's point at trial that the disputed
testimony gave the "clear implication" that "some unknown
anonymous caller said that [defendant] must have been the
suspect" is mere supposition.    Moreover, defendant's reiteration
on appeal of his point at trial that the subject evidence
"clearly stands for the proposition [that] somebody told [the
detective] to look for [defendant] because [defendant] was the
shooter before someone spoke to [the eyewitness]" is similarly
misplaced.
            Accordingly, the order of the Appellate Division in
People v Garcia should be reversed and a new trial ordered, and
the order of the Appellate Division in People v DeJesus should be
affirmed.




                                - 14 -
People v Garcia
No. 40




PIGOTT, J. (concurring) :
          I disagree with my colleagues in People v Garcia to the
extent that they hold that the trial court erred, as a matter of
law, in admitting the detective's testimony regarding his
conversation with Colon's sister.
          The detective's testimony, which did not go into any of
the specific details of his conversation with Ms. Colon, was
necessary to explain to the jury how the detective came to focus
on defendant during his nearly two-year investigation (see People
v Till, 87 NY2d 835, 837 [1995]). Under certain circumstances,
and when coupled with proper limiting instructions, testimony of
this kind may fill in gaps of “interwoven events" (id.) and thus,
help the jury understand the case in context.
          Without the detective’s very brief testimony of Ms.
Colon’s account that there was a “problem” between defendant and
Mr. Colon, there would have been no explanation for why the
detective included defendant in the initial photo array or spent
two years looking for him.   The jury would have been left to
speculate over an obvious gap in the narrative.
          I agree, as both defense counsel and the prosecutor
requested, that a limiting instruction should have been given to


                               - 1 -
                                 - 2 -                              No. 40

explain the testimony's limited purpose.         As my colleagues
recognize, the testimony arguably suggested to the jury a motive
for the shooting and the court's failure to give that limiting
instruction was not harmless.
*   *   *   *   *   *    *   *    *      *   *     *   *   *   *    *   *
For Case No. 40: Order reversed and a new trial ordered.
Opinion by Judge Fahey. Chief Judge Lippman and Judges Rivera,
Abdus-Salaam and Stein concur. Judge Pigott concurs in result in
a separate opinion in which Judge Read concurs.
For Case No. 41: Order affirmed. Opinion by Judge Fahey. Chief
Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and
Stein concur.

Decided March 31, 2015




                                 - 2 -
