In People v. Fairweather (2d Dept. 1/19/2010), the defendant was charged with Assault 1º and related offenses. The conviction was reversed because of a Confrontation Clause violation; the court did not find it was harmless error.
The detective who arrested the defendant testified that he determined the defendant was a suspect after speaking with the complainant, who did not testify. "The challenged testimony was improper, since it directly implied that the complainant identified the defendant as the perpetrator." The court declined to apply the harmless error doctrine because the evidence of guilt was not overwhelming and the prosecutor had stated, in his opening statement, that the complainant would testify.
The Confrontation Clause claim was not preserved; however, the court reached the issue in the interest of justice. Hence, the Court of Appeals cannot review this question. (LC)
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