Opinion
December 26, 1989
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is affirmed.
The defendant's conviction arose out of his participation in the January 15, 1981, armed robbery of a beer distribution store in Queens County, which resulted in the death of an owner of the store. Two witnesses had recorded the license plate number of the "getaway" car and the defendant and the two codefendants were arrested in the car shortly after the robbery. The car contained the weapons described by the witnesses and a case of beer which had been taken during the robbery. All three perpetrators made statements which were held to be admissible. The defendant was jointly tried with his two codefendants and he now claims that his constitutional right of confrontation was violated by the introduction of the confessions of his codefendants (see, Bruton v United States, 391 U.S. 123).
Initially, we note that the defendant failed to preserve for appellate review his challenge to the introduction of his codefendants' statements on Bruton grounds, nor did the defendant move for a severance (see, CPL 470.05; People v Green, 138 A.D.2d 516; People v Frankos, 110 A.D.2d 713, 714). In any event, while we recognize that the admission of the pretrial statements of the nontestifying codefendants was improper (see, Cruz v State of New York, 481 U.S. 186, on remand 70 N.Y.2d 733; Bruton v United States, supra; People v Wheeler, 62 N.Y.2d 867; People v Baity, 139 A.D.2d 521), under the circumstances the error was harmless beyond a reasonable doubt (see, People v Hamlin, 71 N.Y.2d 750; People v Crimmins, 36 N.Y.2d 230). The defendant's own statement demonstrated his guilt. Although the defendant was not identified by the witnesses, he was arrested in the car with the other perpetrators whom the witnesses were able to identify, and the car contained the guns described by the eyewitnesses and a case of beer taken during the robbery. The car was registered in the defendant's name. Moreover, the physical evidence adduced through the testimony of two fingerprint experts linked the defendant to the crime scene. We find that there is no reasonable possibility that the outcome of the trial as to this defendant would have been different had the trial court excluded the statements of his codefendants (see, People v West, 72 N.Y.2d 941; People v Hamlin, supra; People v Crimmins, supra).
The record reveals that the defendant's trial counsel provided him with meaningful representation at both the pretrial hearings and the trial (see, People v Rivera, 71 N.Y.2d 705; People v Baldi, 54 N.Y.2d 137). We find no merit to the defendant's contention that the failure of the defendant's counsel at trial to seek a severance constitutes ineffective assistance of counsel.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15). In determining these issues, we have not considered the codefendants' statements.
The defendant's remaining contentions, including his claim that the sentence imposed is excessive, are either unpreserved for appellate review or without merit. Mollen, P.J., Thompson, Lawrence and Eiber, JJ., concur.