Opinion
December 4, 1989
Appeal from the Supreme Court, Queens County (Chetta, J.).
Ordered that the judgment is affirmed.
The defendant and 1 of his 3 other codefendants, Clarence Smith, were jointly tried on charges stemming from the shooting and death of Gary Gelish at Eppie's Auto Parts store in Queens on October 27, 1983. On the day following the homicide, the defendant and his codefendant Smith made "substantially identical" statements to law enforcement officials, and the Trial Judge, in reliance upon the law prevailing at the time (see, People v Cruz, 66 N.Y.2d 61, revd 481 U.S. 186), denied the defendant's motion for severance based on the Bruton rule (see, Bruton v United States, 391 U.S. 123). The codefendant Smith's statements were subsequently introduced into evidence at the joint trial. Neither defendant testified.
While the Confrontation Clause bars the admission at a joint trial of a nontestifying codefendant's confession which serves to incriminate the defendant, even if the jury is given a limiting instruction, and even if the defendant's own confession is admitted against him, the defendant's own confession may nevertheless be considered on appeal in assessing whether a violation of the Confrontation Clause was harmless (see, Cruz v New York, supra; People v Hamlin, 71 N.Y.2d 750; People v Garcia, 151 A.D.2d 500; People v Williams, 136 A.D.2d 581). A violation of the Confrontation Clause may be deemed harmless beyond a reasonable doubt if there is no reasonable possibility that the jury would have acquitted the defendant absent the error (see, Cruz v New York, supra; People v Hamlin, supra).
Applying these principles to the instant case, we conclude that there is no reasonable possibility that the defendant would have been acquitted had the codefendant Smith's statements not been admitted (see, People v Hamlin, supra). In this regard, we note that the defendant's videotaped confession to law enforcement officials fully explained his participation in the crime without reference to his codefendant's statements and was more detailed and expansive than the codefendant Smith's statements (see, People v Hamlin, supra; People v Alleyne, 154 A.D.2d 473; People v Garcia, supra). Further, the defendant's admissions were corroborated by other objective evidence (see, People v Hamlin, supra), including the testimony of a ballistics expert that the shot which killed the victim was fired from a 15-round, nine-millimeter gun such as the one described by the defendant in his videotaped statement. Moreover, the defendant consistently repeated his confession during three separate interviews with law enforcement officials (see, People v Hamlin, supra) and never repudiated the confession.
We have examined the defendant's remaining contentions, and find that they are either unpreserved for appellate review or without merit. Mangano, J.P., Bracken, Kunzeman and Spatt, JJ., concur.