Criminal prosecutions in New York are confined by constitutional and statutory protections for people accused of crimes in this state. The state rules of Evidence and criminal procedure prevent prosecutors from eliciting certain types of testimony and other evidence that is determined to be inadmissible Hearsay. Hearsay involves an out-of-court statement, offered for the truth of the matter asserted.  Hearsay is by definition a violation of the confrontation clause of the US Constitution in that it may violate the principle that the accused has the right to confront the witness against the accused.   Although many exceptions to the prohibition on Hearsay Evidence exist, hearsay evidence manages to find its way into trial in thousands of criminal prosecutions each year.

A New York court recently affirmed the conviction of a man for attempted sexual assault, rejecting the defendant’s arguments that inadmissible hearsay testimony offered at trial should invalidate his conviction. The defendant from the recently decided case was charged with attempted sexual assault after he was reported to have aggressively approached and grabbed a 14-year-old victim while they were in an elevator together. During the trial, the defendant’s attorney objected to the admission of certain portions of a 911 call involving the victim’s neighbor on the basis that the statements were hearsay. The objection was overruled, and the defendant was convicted of the charges.

The defendant appealed his conviction, arguing that the admission of the hearsay evidence was an error, which tainted his conviction. The appellate court agreed with the defendant that the statements should not have been allowed at trial; however, the court found the error was harmless in light of the overwhelming other evidence incriminating the defendant in the charges. The court noted that there were other areas at trial where inadmissible evidence may have been admitted, but the defendant failed to properly address those on appeal, so the court would not disturb the defendant’s conviction.

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