Opinion
July 19, 1993
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the order is affirmed.
The defendant seeks a reversal of his judgment of conviction on the ground that Cruz v. New York ( 481 U.S. 186), which was determined long after the defendant's judgment became final, should be retroactively applied to his case. The defendant contends that if this Court applied Cruz, we would find that the admission of the statement of the nontestifying codefendant at the joint trial of the codefendant and the defendant constituted reversible error.
We find it unnecessary to address the question of retroactivity of the Cruz holding to cases no longer on direct appeal, in light of our finding that, even if Cruz v. New York (supra), were to be given retroactive effect in the instant case, the error would be harmless.
The statement of the nontestifying codefendant was not admitted as evidence against the defendant, and the defendant's own inculpatory statement was comprehensive and satisfactorily explained his part in the crimes charged. Further, the defendant did not affirmatively repudiate his inculpatory statements. Thus, based upon our assessment of "the probable impact" of the codefendant's statement on the "minds of an average jury", we find that there is no reasonable possibility that the admission of the codefendant's statement affected the verdict against the defendant (see, People v. Hamlin, 71 N.Y.2d 750, 758, quoting Harrington v. California, 395 U.S. 250, 254). Bracken, J.P., Balletta, O'Brien and Copertino, JJ., concur.