| People v Cruz |
| 2007 NY Slip Op 09282 [45 AD3d 1462] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Richard Cruz,Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered August10, 2005. The judgment convicted defendant, upon a jury verdict, of robbery in the first degree,robbery in the second degree and burglary in the first degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed as a matter of discretion in the interest of justice and on the law and a newtrial is granted.
Memorandum: Defendant appeals from a judgment convicting him of, inter alia, robbery inthe first degree (Penal Law § 160.15 [4]), arising out of an incident in which he and twoother individuals were identified as having broken into an apartment in the City of Buffalo andstolen various items. Later that evening, after receiving identifying information from one of thevictims, the police arrested one codefendant, who thereafter fled the country and was tried inabsentia. They also arrested a third individual, who was tried jointly with defendant. Thecodefendant made incriminating statements, and defendant contends that the admission of thosestatements at trial constitutes reversible error. We agree. The first statement was, "[I]f I tell youwhere we put the clothes and the backpack, do you think that they will drop the charges?" In thesecond statement, the codefendant stated, "[T]hat's where we threw [the stolen items]," and heasked, "[D]id you check the backseat? . . . If they're not there, maybe my girlfriendtook them. Can you talk to her?"
We note at the outset that, although the first trial ended in a mistrial for reasons not relevantherein, defendant objected to the first statement on Bruton grounds and moved either tosever the trials or to redact the word "we" from the statement. County Court denied the motion.The codefendant's incriminating statements were admitted at the second trial without anyobjection or motion such as that made by defendant at the first trial. Nevertheless, despite the factthat defendant failed to raise any objection at the second trial and thus failed to preserve for ourreview his contention that reversal is required based on the erroneous admission of the statements(see People v Walker, 71 NY2d 1018 [1988]), we exercise our discretion and reachdefendant's contention as a matter of discretion in the interest of justice (see CPL 470.15[6] [a]).[*2]
First, we agree that there was a Bruton violationinasmuch as the jury could only have inferred that the "we" in the statements referred to all threecodefendants. A defendant's right of confrontation is violated where the confession of anontestifying codefendant that facially incriminates the defendant is introduced at their joint trial(see Bruton v United States, 391 US 123, 135-137 [1968]; see also Richardson vMarsh, 481 US 200, 207 [1987]). "When an extrajudicial statement by one defendantcontains incriminating references to another defendant, admission of that statement upon theirjoint trial deprives the nonconfessing defendant of his right to confront the witness against himunless that witness also testified at the joint trial" (People v Wheeler, 62 NY2d 867, 869[1984], citing Bruton, 391 US 123 [1968]). "If the confession, however, can beeffectively redacted so that the jury would not interpret its admissions as incriminating thenonconfessing defendant, it may be utilized at the joint trial" (id.). Here, althoughdefendant was implicated by use of a neutral pronoun rather than by name, the evidence beforethe jury established that both victims saw three robbers and one of the victims identified therobbers by name. Under the circumstances, there is no possibility that the incriminatingreferences "would not necessarily be viewed by the jury as referring to defendant" (id.).We reject the People's contention that the limiting instruction given by the court was sufficient toalleviate any prejudice to defendant (see Bruton, 391 US at 135-136), nor can it be saidthat the error is harmless beyond a reasonable doubt (see generally People v Crimmins,36 NY2d 230, 237 [1975]).
Defendant further contends that reversal is required based on a Crawford violation.We agree. The out-of-court statements of the codefendant were testimonial in nature, and theytherefore were inadmissible because the codefendant was not unavailable and defendant had noprior opportunity to cross-examine him (see Davis v Washington, 547 US —,—, 126 S Ct 2266, 2273-2274 [2006]; People v Kyser, 26 AD3d 839 [2006]). Further, as addressed in thecontext of the Bruton violation, there is no possibility that the jury could have inferredthat the neutral pronoun used by the codefendant referred to anyone other than defendant.
We have reviewed the remaining contentions of defendant and conclude that they are withoutmerit. Present—Martoche, J.P., Centra, Peradotto, Green and Pine, JJ.