People v. Di Nicolantonio , 140 A.D.2d 44 ( 1988 )

OPINION OF THE COURT

Per Curiam.

There is no question but that the defendant’s constitutional right to cross-examine the witnesses against him, guaranteed by the Confrontation Clause of the Sixth Amendment (US Const 6th, 14th Amends), was violated in this case (see, Cruz v New York, 481 US 186, 107 S Ct 1714, on remand 70 NY2d 733; Bruton v United States, 391 US 123). The critical issue then is whether this violation of one of the most important rights guaranteed to a defendant in a criminal case (see, Pointer v Texas, 380 US 400, 404) can be overlooked, on the basis that there is no reasonable possibility that it affected the jury’s verdict (see, Chapman v California, 386 US 18; Harrington v California, 395 US 250; see also, People v Hamlin, 71 NY2d 750; People v Pitts, 71 NY2d 923; People v Crimmins, 36 NY2d 230). Unlike our dissenting associates, we cannot dispel from our minds the opinion that the outcome of this trial would have been different had it been conducted in accordance with the mandates of the Federal Constitution. We therefore reverse the judgment of conviction and order a new trial.

The defendant was convicted, upon a jury verdict, of murder in the second degree (Penal Law § 125.25 [3] [felony murder]), four counts of attempted robbery in the first degree (Penal Law § 160.15 [1], [2]; § 110.00), criminal possession of a weapon in the second degree (Penal Law § 265.03) and criminal use of a firearm in the second degree (Penal Law § 265.08 [1]). The principal item of evidence adduced against the defendant at trial consisted of his pretrial statement to police. In this statement, the defendant admitted that he had accompanied three other men ("Rex”, "Carlos” and "Joey”), whom he knew to have planned to "do a stick up” and whom he knew to be in possession of handguns, to the BVD Bar in Queens, New York. According to this statement, the defendant drove his three accomplices to the bar in his 1971 Pontiac Bonneville, observed them enter the bar, and, after their return a few minutes later, drove them away. According to the defendant’s statement, it was his codefendant, Rex Rivera, who distributed handguns to the other men who entered the bar, and it was Rivera, who, upon their return to the defendant’s car, admitted that he had shot an off-duty police officer.

The defendant was tried together with Rivera and Carlos Flores. This joint trial was held as a consequence of the Supreme Court’s erroneous decision, over the defendant’s objection, to grant a motion to consolidate which had been made by the People. At trial, transcribed pretrial statements which had been made by Rivera and Flores were admitted into evidence against them. There is no basis upon which they properly could have been admitted against the defendant. Flores’s statement confirmed that of the defendant by identifying the defendant as the "wheelman” and by identifying Rivera as the perpetrator who intentionally shot the victim. Rivera, however, in his statement to police, claimed that it was he who had been the "wheelman” and he identified the defendant as the actual killer. The admission of these codefendants’ statements into evidence at the defendant’s trial unquestionably constituted a violation of the defendant’s right to confront and cross-examine the witnesses against him (see, Cruz v New York, supra; Bruton v United States, supra).

In assessing the effect that this constitutional error might have had on the outcome of the trial, it is necessary to consider separately so much of the jury’s verdict as convicted the defendant of felony murder and the weapons charges, on the one hand, and so much of the verdict as convicted him of four counts of robbery on the other. With respect to the felony murder and weapons convictions, we conclude that there is a substantial likelihood that the Cruz-Bruton error that occurred in this case may have tainted the jury’s verdict. Although the harmless error question is closer with respect to the attempted robbery convictions, we conclude that a new trial is warranted as to these counts as well.

The defendant attempted to avoid a conviction of the felony murder charge by admitting to the jury, through his attorney, the truth of his own pretrial statement. The defendant admitted at trial that he knowingly aided in the commission of the attempted robbery of several patrons of the BVD Bar by driving the perpetrators to that location and by later driving them away from it. The defendant insisted, however, that his statement to police accurately shows, (1) that he was not the actual killer and did not aid in the actual killing, (2) that he himself was not armed with a deadly weapon or dangerous instrument, (3) that he had no reasonable ground to believe that any of the other participants in the robbery had such a weapon, and (4) that he had no reasonable ground to believe that any of the other participants intended to engage in conduct likely to result in death or serious physical injury. The defendant hoped, in other words, to have the jury accept the "nonkiller” affirmative defense to felony murder (Penal Law § 125.25 [3]).

The weight of the evidence adduced at trial, in fact, establishes the truth of the first, second and fourth components of this affirmative defense. The critical issue for the defendant, then, was whether there was sufficient proof as to the third component of this affirmative defense, that is, whether there was sufficient proof that he had no reasonable ground to believe that the other participants in the robbery were armed with deadly weapons. This was the issue upon which the defendant’s guilt or innocence of felony murder entirely hinged, and it is the effect which the trial court’s Bruton-Cruz error may have had upon the jury’s determination of the issue which is decisive on this appeal.

The defendant in his transcribed statement indicated that it was Rivera who had distributed and who later collected the handguns which had been used in the robbery. There is nothing in this defendant’s statement from which it could be inferred that the defendant actually exerted dominion and control over these weapons, or that he owned them. The factual, if not the legal, sufficiency of the evidence adduced in support of the weapons convictions is therefore not beyond question (see, People v Quick, 30 AD2d 561, affd 26 NY2d 773 [participation in underlying felony does not necessarily make a defendant guilty of possession of weapons used by others incidental to that felony]; cf., People v Keitt, 42 NY2d 926, affg 51 AD2d 1024; see also, People v Restrepo, 93 AD2d 825; People v Vastola, 70 AD2d 918), particularly in light of the heavy burden that the People undertake when relying on constructive rather than actual possession (see, People v Roberson, 41 NY2d 106, 109; People v Lemmons, 40 NY2d 505, 514). Since Rivera’s statement to the police indicated that it was the defendant who had custody of the weapons, we cannot conceive of how the Cruz-Bruton error inherent in the admission of Rivera’s statement can be considered harmless, at least insofar as the weapons convictions are concerned.

Similarly, there is no direct evidence in the defendant’s statement that he knew that the guns which he saw being displayed by his companions were loaded and operable so as to constitute "dangerous weapons”. Importantly, at one point in his statement while describing the weapons he had seen, the defendant indicated that one of the weapons appeared to be "like one where a beebie would come out of’ and stated that it appeared to have no "hole where a bullet would come out of’. From this, a jury could infer that the defendant did not know the weapons were operable and there may be merit to the defendant’s affirmative defense. We are of the opinion that the possibility that the jury might have acquitted the defendant on the basis of that affirmative defense would have been substantially greater had it not been for their awareness of the codefendant Rivera’s claim that it was the defendant who produced the weapons. We cannot conclude that there is no reasonable possibility that the jury’s verdict as to felony murder was unaffected by this error, and so, pursuant to the proper standard for reviewing the harmlessness of constitutional error (see, Chapman v California, supra; Harrington v California, supra; People v Crimmins, supra, at 237), we find that the felony murder conviction must be reversed.

The cases relied upon in the dissent illustrate how a CruzBruton error may generally be considered harmless where the defendant’s own confession is equally or more inculpatory than that of the confessing codefendant, or where there is evidence unrelated to the defendant’s statements which furnishes additional corroboration of the guilt (e.g., People v West, 137 AD2d 855 [three eyewitnesses, dying declarations of victim provided additional evidence of guilt]; People v Ortiz, 137 AD2d 727 [strong identification testimony]; People v McCain, 134 AD2d 287, lv denied 71 NY2d 899). In People v Hamlin (supra) for example, the Court of Appeals held that Cruz error could be deemed harmless where the defendant’s own confession to intentional murder was corroborated by evidence that blood and hair samples consistent with the victim’s were found on his clothes and by evidence that bloodstained money taken from the victim, and the murder weapon, were found in locations identified by the defendant. These cases do not focus on the possible effect which a Cruz-Bruton error might have on a defendant’s proposed affirmative defense to felony murder. However, in one case recently decided by this court in which this was the principal issue, a felony murder conviction was reversed on the law (see, People v Eady, 134 AD2d 362).

In People v Eady (supra) the defendant was accused along with two others of having participated in a robbery during which a nonparticipant was killed. The confessions of the two codefendants were admitted into evidence and, according to one of these confessions, it was the defendant who had provided the gun later used by a codefendant to kill the victim. Correctly noting that such evidence tended to undermine the defendant’s affirmative defense to felony murder, this court ordered a new trial as to the felony murder, while affirming the conviction for the underlying robbery. We can frankly see no valid distinction between the present case and People v Eady (supra) which would justify an affirmance of the defendant’s felony murder conviction.

We are also of the opinion that, under the particular facts presented here, the defendant’s robbery convictions should be reversed. Our satisfaction that his guilt of these crimes was proved, given his candid admissions to these crimes at trial, is not alone determinative of whether these convictions should be permitted to stand. The test to be applied in deciding whether to affirm a judgment of conviction, which imposes criminal liability upon a defendant and which results in his loss of liberty, is not limited to deciding whether the judgment reflects an accurate assessment of the facts; rather, the test includes a determination as to whether the process by which the jury reached its verdict — however reliable it may be — was fundamentally fair. The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment guarantees that a criminal defendant may not be tried in a manner which deprives him of " 'that fundamental fairness essential to the very concept of justice’ ” (Payne v Arkansas, 356 US 560, 567, quoting from Lisenba v California, 314 US 219, 236). In the words of Justice Harlan, "the requirements of the Due Process Clause of the Fourteenth Amendment must be respected, no matter how heinous the crime in question and no matter how guilty an accused may ultimately be found to be after guilt has been established in accordance with the procedure demanded by the Constitution” (Chessman v Teets, 354 US 156, 165).

The defendant’s trial in this case was fundamentally unfair because there is a substantial possibility that his entire defense strategy, specifically the strategy of admitting the truth of his confession, was the result of the court’s erroneous granting of the motion to consolidate his trial with those of Rivera and Flores. There is, as the dissent notes, no explicit indication in the record that the defendant adopted this desperate strategy because of the court’s error. This, however, is immaterial. This court has on innumerable occasions reviewed claims of Sandoval error (People v Sandoval, 34 NY2d 371) oh the merits, without insistence on a demonstration in the record that the Sandoval ruling had any effect on the defendant’s decision whether to testify. It is, in effect, assumed for the purposes of appellate review that an erroneous Sandoval ruling affected the defendant’s decision not to testify (see, People v Williams, 56 NY2d 236, 240-241; cf., Luce v United States, 469 US 38). Similarly, the Court of Appeals has held that since an erroneous pretrial order respecting the admissibility of evidence may be assumed to have had an effect on a defendant’s decision to plead guilty, such orders should not be affirmed pursuant to the harmless error doctrine upon appellate review pursuant to CPL 710.70 (2) (see, People v Coles, 62 NY2d 908). By analogy, we think it may fairly be assumed in the present case that the risky trial strategy adopted by the defendant was the product of the court’s Cruz-Bruton error, and we therefore do not agree with the dissenters that the defendant’s employment of that strategy may be considered conclusive with respect to the harmlessness of the Cruz-Bruton error. "Speculation about what the defendant might have done had the circumstances been different can never be more than just that — speculation” (People v Williams, supra, at 240-241). Since speculation as to whether the defendant might have adopted a different trial strategy had the Cruz-Bruton error not occurred is fruitless, we think that for purposes of appellate review it should be assumed that the error had such an effect, rather than assuming, as the dissenters apparently do, that it did not.

One final consideration must be expressed. We need not speculate as to what might be the ultimate outcome of the now pending appeal filed by the codefendant Rivera, the individual who by all indications in the present record was, as the jury found, the actual killer of the victim. We only note that a certain incongruity would develop if, as the dissenters argue, this defendant’s conviction of felony murder and attempted robbery should be affirmed and if it should thereafter be decided on appeal that, because of the trial court’s Cruz-Bruton error, Mr. Rivera is entitled to a new trial simply because, unlike the present defendant, he unsuccessfully attempted to repudiate his own confession (see, People v Pitts, 71 NY2d 923, supra). It would certainly appear most unfair if, as between two jointly tried codefendants, the obviously more culpable defendant should be afforded a new trial based upon the same claim of error which proved unavailing to the less culpable defendant.

In light of these considerations, we conclude that the robbery convictions of the defendant should also be reversed, together with his weapons convictions and his conviction of felony murder, and that a new trial should be ordered. We have examined the defendant’s remaining contentions and find that they are without merit.