Opinion
2010–11942 Ind. No. 1855/08
10-07-2020
The PEOPLE, etc., respondent, v. Ariel CASARES, appellant.
Randall D. Unger, Kew Gardens, NY, for appellant. Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Sharon Y. Brodt, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Randall D. Unger, Kew Gardens, NY, for appellant.
Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Sharon Y. Brodt, and Nancy Fitzpatrick Talcott of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS-RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered November 22, 2010, convicting him of manslaughter in the first degree, gang assault in the first degree, assault in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
We agree with the Supreme Court's determination to deny, as untimely, the defendant's request for a missing witness charge with respect to two witnesses to the subject incident (see People v. Cedeno , 113 A.D.3d 695, 697, 978 N.Y.S.2d 328, revd on other grounds 27 N.Y.3d 110, 31 N.Y.S.3d 434, 50 N.E.3d 901 ; People v. Whitlock , 95 A.D.3d 909, 910, 943 N.Y.S.2d 227 ; People v. Sealy , 35 A.D.3d 510, 826 N.Y.S.2d 358 ; People v. Breen , 292 A.D.2d 459, 738 N.Y.S.2d 876 ; People v. Woods , 275 A.D.2d 332, 712 N.Y.S.2d 407 ). In any event, the defendant failed to meet his burden of establishing his prima facie entitlement to such a charge (see People v. Gonzalez , 68 N.Y.2d 424, 430, 509 N.Y.S.2d 796, 502 N.E.2d 583 ; People v. Cedeno , 113 A.D.3d at 697, 978 N.Y.S.2d 328 ; People v. Whitlock , 95 A.D.3d at 910, 943 N.Y.S.2d 227 ; People v. Rodriguez , 77 A.D.3d 975, 976, 911 N.Y.S.2d 79 ; People v. Smith , 49 A.D.3d 904, 855 N.Y.S.2d 572 ).
However, we agree with the defendant that, under the instant circumstances, the Supreme Court's admission of codefendant Jason Villanueva's redacted statement to the police violated the rule articulated in Bruton v. United States (391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ), because the subject redaction would have caused the jurors to "realize that the confession refers specifically to the defendant" or to one of the other nonconfessing codefendants ( People v. Cedeno , 27 N.Y.3d at 116, 31 N.Y.S.3d 434, 50 N.E.3d 901 [internal quotation marks omitted]; see Gray v. Maryland , 523 U.S. 185, 186, 118 S.Ct. 1151, 140 L.Ed.2d 294 ; People v. Cedeno , 27 N.Y.3d at 120–121, 31 N.Y.S.3d 434, 50 N.E.3d 901 ). In addition, the error was not harmless. "[I]t cannot be said that ‘there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction’ " ( People v. Cedeno , 27 N.Y.3d at 122, 31 N.Y.S.3d 434, 50 N.E.3d 901, quoting People v. Hamlin , 71 N.Y.2d 750, 756, 530 N.Y.S.2d 74, 525 N.E.2d 719 ), given that the statement was inconsistent with the defendant's justification defense, and the court failed to give the jurors a proper limiting instruction to only consider the statement against Villanueva. Accordingly, the judgment should be reversed and the matter remitted to the Supreme Court, Queens County, for a new trial.
We note that, as the defendant contends and the People concede, the record does not indicate that the Supreme Court considered whether to afford the defendant youthful offender treatment at sentencing (see People v. Shehi , 185 A.D.3d 610, 124 N.Y.S.3d 824 ; People v. Lockwood , 184 A.D.3d 670, 123 N.Y.S.3d 507 ).
BALKIN, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.