| People v Pinto |
| 2008 NY Slip Op 09120 [56 AD3d 956] |
| November 20, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Rory Pinto,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered January 11, 2006, upon a verdict convicting defendant of the crimes of burglary in thesecond degree (two counts), robbery in the second degree (two counts) and criminal use of afirearm in the second degree.
Two men wearing masks and wielding a handgun pushed their way into an apartment, tied upthe two female occupants, threatened to kill them, demanded money at gunpoint and ransackedthe apartment. Finding no money, but taking a red cellular phone from one of the victims, themen left the apartment and found themselves immediately surrounded by police. One of the men,later identified as defendant, was quickly arrested. The other man, later identified as OmarPerkins, escaped, but he was soon caught and arrested after having been observed throwing awaya gun. Perkins was also found to be in possession of a red cellular phone of the same brand andtype as that stolen from one of the victims. After defendant and Perkins were later indicted onnumerous charges related to the incident, County Court denied defendant's motion for a separatetrial and permitted the People to introduce Perkins's incriminating written statement whichdescribed the involvement of both men, but omitted defendant's name.[*2]
At the end of the joint trial, the jury initially returned averdict convicting both defendant and Perkins of all charges (People v Perkins, 56 AD3d944 [2008] [decided herewith]). However, upon polling the jury and finding that all jurorswere not in agreement with the verdict against defendant, County Court directed thatdeliberations as to his charges would continue the next day. When the proceedings resumed,County Court gave an Allen charge and, after further deliberations, the jury returned averdict convicting defendant of two counts of burglary in the second degree, two counts ofrobbery in the second degree and one count of criminal use of a firearm in the second degree.Defendant was then sentenced to two concurrent prison terms of 12½ years for the twocounts of burglary in the second degree, a concurrent prison term of 12½ years for criminaluse of a firearm in the second degree and two prison terms of 12½ years with five years ofpostrelease supervision for the two counts of robbery in the second degree, with one such term torun concurrently and the other to run consecutively with the terms for burglary. Defendant nowappeals.
Initially, we find merit in defendant's contention that his right of confrontation was violatedwhen County Court permitted a police officer to read the insufficiently redacted writtenstatement of Perkins, who did not testify, to the jury. A defendant's right of confrontation isviolated where the confession of a nontestifying codefendant which facially incriminates thedefendant is introduced at their joint trial (see Richardson v Marsh, 481 US 200, 207-208[1987]; Bruton v United States, 391 US 123, 135-137 [1968]). Such a confession may beutilized at a joint trial only if it "can be effectively redacted so that the jury would not interpret itsadmissions as incriminating the nonconfessing defendant" (People v Wheeler, 62 NY2d867, 869 [1984]).
Here, despite the removal of defendant's name, the substitution of neutral pronouns and alimiting instruction by the court, Perkins's account of the events on the day in question containednumerous incriminating references to another participant in the crime. For example, Perkins'sdescription of his unnamed accomplice stated: "[He] [t]hen walked up the stairs [of the victim'sapartment] and I followed behind him," "[w]e both tied up the girls" and "[w]e were in theapartment for 20 minutes tearing it up looking for drugs and money when we left." To compoundthe error, almost immediately after reading the statement, the officer stated that he hadinvestigated its accuracy by viewing surveillance tapes at the restaurant mentioned in it to see ifhe could identify defendant. Further, the prosecutor's opening statement had earlier made it clearto the jury that only defendant and Perkins participated in the crime. As a result, it isinconceivable that the jury could have considered Perkins's account of his accomplice's actions asdescribing anyone other than defendant and, thus, the statement was insufficiently redacted to beadmissible in a joint trial (see People v Wheeler, 62 NY2d at 869; People vBoone, 22 NY2d 476, 484-485 [1968], cert denied 393 US 991 [1968]; People v Cruz, 45 AD3d 1462,1464 [2007]; People v Jones, 280 AD2d 489, 490 [2001]; People v Khan, 200AD2d 129, 138-139 [1994], lvs denied 84 NY2d 939 [1994], 85 NY2d 866 [1995];People v Ciembroniewicz, 169 AD2d 929, 931 [1991]; People v Hussain, 165AD2d 538, 542 [1991]). Under the circumstances, we cannot agree with the People that the otherevidence identifying defendant as one of the home invaders is overwhelming, as illustrated by thefact that an Allen charge was necessary because at least one juror disagreed with theinitial verdict finding defendant guilty (see People v Wheeler, 62 NY2d at 870;People v Cruz, 45 AD3d at 1464; People v Ciembroniewicz, 169 AD2d at 931).Practically speaking, only a second jury would have avoided the violation of defendant'sconfrontation rights here (see generally People v Ricardo B., 73 NY2d 228, 232-235[1989]). Accordingly, reversal is required.[*3]
We have reviewed defendant's remaining contentions andfind them to be academic and unpreserved or without merit.
Cardona, P.J., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for a new trial.