To the contrary, it is well settled that "Richardson placed outside the scope of Bruton 's rule those statements that incriminate inferentially" ( Gray, 523 U.S. at 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 ). Thus, inasmuch as the statements are only inculpatory with respect to defendant when combined with other evidence establishing that he was also part of the crime, we conclude that the court did not err in admitting the nontestifying codefendant's statements because they were "not facially incriminating[ with respect to defendant], and proper limiting instructions were given to the jury concerning the use of the codefendant's statement[s] as evidence against [this] defendant [ ]" ( People v. Marcus, 137 A.D.2d 723, 723, 524 N.Y.S.2d 806, lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 903 ; see People v. Gilocompo, 125 A.D.3d 1000, 1001, 4 N.Y.S.3d 288, lv. denied 25 N.Y.3d 1163, 15 N.Y.S.3d 296, 36 N.E.3d 99 ; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657 ). "In addition, the testimony of the [witness] concerning a conversation between [an] accomplice and defendant did not violate defendant's right of confrontation because the statements of the ... accomplice during that conversation were not themselves testimonial in nature" ( People
To the contrary, it is well settled that "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially" (Gray, 523 US at 195). Thus, inasmuch as the statements are only inculpatory with respect to defendant when combined with other evidence establishing that he was also part of the crime, we conclude that the court did not err in admitting the nontestifying codefendant's statements because they were "not facially incriminating[ with respect to defendant], and proper limiting instructions were given to the jury concerning the use of the codefendant's statement[s] as evidence against [this] defendant[]" (People v Marcus, 137 AD2d 723, 723, lv denied 72 NY2d 862; see People v Gilocompo, 125 AD3d 1000, 1001, lv denied 25 NY3d 1163; People v Dickson, 21 AD3d 646, 647). "In addition, the testimony of the [witness] concerning a conversation between [an] accomplice and defendant did not violate defendant's right of confrontation because the statements of the . . . accomplice during that conversation were not themselves testimonial in nature" (People v Robles, 72 AD3d 1520, 1521, lv denied 15 NY3d 777). Although the United States Supreme Court "le[ft] for another day any effort to spell out a comprehensive definition of testimonial' " (Crawford v Washington, 541 US 36, 68), the Court wrote that such a statement must be " [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact' " (id. at 51).
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. 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). The trial court's admission of codefendant Jason Villanueva's redacted statement to the police did not violate 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 not have caused the jurors to “realize that the confession refers specifically to the defendant” (Gray v. Maryland, 523 U.S. 185, 186, 118 S.Ct. 1151, 140 L.Ed.2d 294; see People v. Borgos, 168 A.D.2d 628, 563 N.Y.S.2d 105; People v. Johnson, 162 A.D.2d 620, 620–621, 556 N.Y.S.2d 1004; People v. Marcus, 137 A.D.2d 723, 524 N.Y.S.2d 806; cf. People v. Khan, 200 A.D.2d 129, 613 N.Y.S.2d 198; People v. Hussain, 165 A.D.2d 538, 568 N.Y.S.2d 966; People v. Sutter, 162 A.D.2d 644, 556 N.Y.S.2d 959). Furthermore, the admission of Detective Wilkowski's testimony regarding statements made to him by the defendant's self-described girlfriend did not violate the Bruton rule ( see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) or the defendant's right of confrontation ( see People v. Wilson, 101 A.D.3d 764, 765–766, 955 N.Y.S.2d 362; cf. People v. Berry, 49 A.D.3d 888, 889, 854 N.Y.S.2d 507; People v. Johnson, 7 A.D.3d 732, 777 N.Y.S.2d 190; People v. Geoghegan, 68 A.D.2d 279, 284, 416 N.Y.S.2d 802, affd.51 N.Y.2d 45, 431 N.Y.S.2d 502, 409 N.E.2d 975).
Defendant's right to confrontation was not violated by the admission of the codefendants' redacted confessions which substituted the words "other guys", whenever the confessions referred to the defendant and another codefendant by name. Given the fact that there were multiple participants in the robbery ( see, People v Hussain, 165 A.D.2d 538, 542-543, distinguishing, inter alia, People v Marcus, 137 A.D.2d 723, lv denied 72 N.Y.2d 862), and that the codefendants' confessions did not detail the individual roles played by the robbers during the actual robbery, we find that the references in the confessions to the "other guys" did not inescapably point to defendant ( cf., People v Wheeler, 62 N.Y.2d 867), and did not "track" the testimony of the People's witnesses ( cf., People v Khan, 200 A.D.2d 129, 139, lv denied 84 N.Y.2d 937). Even if the admission of these confession was error, it was harmless beyond a reasonable doubt given the overwhelming evidence of defendant's participation in the robbery, including his own detailed confession as to his involvement, and the court's clear instructions that each confession admitted into evidence was to be considered as evidence only against the person who made that confession ( People v Hamlin, 71 N.Y.2d 750). Nor was it an abuse of discretion to deny the defendant's various motions for a mistrial based on the incidents of violence in the courtroom
The Cruz and Richardson holdings have served to limit the appropriate use of the confessions of nontestifying codefendants at joint trials. The practice of using neutral pronouns has, however, been approved several times by this Court under circumstances where there were numerous perpetrators, some of whom were not being tried jointly, and the appropriate limiting instructions were given. Thus, in People v. Marcus ( 137 A.D.2d 723), the defendant's conviction for robbery was affirmed where the robbery was committed by five men, four of whom were arrested and three of whom, the defendant, Brown, and Paris, were jointly tried. Paris's postarrest statement, in which he inculpated himself and Brown, was redacted so that references to Brown were replaced by the phrase "another male."
The codefendant's statements were appropriately redacted at trial to remove any incriminating reference to defendant (see, Bruton v United States, 391 U.S. 123), they were not facially incriminating and proper limiting instructions were provided by the court. Therefore, their use at trial did not violate defendant's constitutional rights (People v Marcus, 137 A.D.2d 723, lv denied 72 N.Y.2d 862). The mere fact that the codefendant's first statement might have supplied some additional details about the robbery does not render it unacceptable where, as here, it did not specifically incriminate defendant and the jury was appropriately charged (supra). We have considered defendant's other contentions and find they do not warrant any modification of the judgment.
Defendant and three other perpetrators were convicted for the brutal subway robbery of four Swiss tourists, during which defendant stabbed one of the victims in the face, permanently blinding him in one eye. Defendant was tried with a codefendant, who had provided a complete confession. The written and videotaped statements were sufficiently redacted at trial to remove any facially incriminating reference to defendant (People v. Marcus, 137 A.D.2d 723, lv denied 72 N.Y.2d 862), and the court properly instructed the jury that the confession was applicable only to the prosecution of the codefendant. Since defendant challenged neither the redactions nor the instructions in limine at trial, no such challenges have been preserved for our present review, and we decline to review in the interest of justice.
s true that, subsequent to the United States Court decision in Richardson v. Marsh ( 481 U.S. 200, supra), this court has rejected similar arguments by other defendants. However, in all of those cases, there was testimony adduced which indicated that numerous other individuals participated in the crimes charged. Therefore, the neutral terms used in the redacted confessions of the codefendants in those cases would not have been understood by the juries involved as inculpating the defendants therein (see, e.g., People v. Sutter, 162 A.D.2d 644 [the terms "my friend", "they" and "three guys" were used in the redacted confession of the codefendant and the jury heard testimony that at least 12 individuals participated in the crime]; People v. Kern, 149 A.D.2d 187, affd 75 N.Y.2d 638, cert denied ___ US ___, 111 S Ct 77 [the words "others" or "another" were used in the redacted codefendant's confession, and there was testimony that approximately a dozen youths were involved in the crime]; People v. Marcus, 137 A.D.2d 723 [the words "another male" were used in the redacted codefendant's confession, but could have been understood by the jury as referring to another jointly tried codefendant or even to two other men who were involved in the robbery]). The error in the instant case, which is of constitutional magnitude, cannot be considered harmless.
The defendant further argues that the trial court violated the holding of Bruton v. United States ( 391 U.S. 123) by admitting into evidence a videotaped statement by his jointly tried codefendant. Although the original videotape statement did contain references to the defendant's presence at the scene, the trial court effectively redacted the tape by deleting any reference to the defendant's presence (see, People v. Wheeler, 62 N.Y.2d 867; People v. Smalls, 55 N.Y.2d 407). Additionally, the trial court properly instructed the jury that it could not use the tape in any way against the defendant (see, Richardson v. Marsh, 481 U.S. 200). Under these circumstances, the defendant's right of confrontation was not violated (see, People v. Brown, 158 A.D.2d 461; People v. Marcus, 137 A.D.2d 723). Thompson, J.P., Lawrence, Kunzeman and Rosenblatt, JJ., concur.
The United States Supreme Court recognized in Richardson v. Marsh (supra) that the necessity of such linkage minimized the probability that the jury would be unable to disregard incriminating inferences thereby overcoming the concern expressed by the Bruton court (Bruton v. United States, 391 U.S. 123). In addition, on two occasions during the trial the trial court gave proper limiting instructions to the jury concerning the use of the codefendant's statement (see, Richardson v. Marsh, supra; People v. Kern, supra; People v. Marcus, 137 A.D.2d 723). Accordingly, the admission of the redacted statement does not warrant reversal. Furthermore, assuming that the redacted statement should not have been admitted, the error was harmless beyond a reasonable doubt in view of the overwhelming independent evidence of the defendant's guilt (see, People v. Hamlin, 71 N.Y.2d 750; People v Brister, supra).