Opinion
September 24, 1992
Appeal from the Supreme Court, New York County (James J. Leff, J.).
Defendant's judgment of conviction was previously affirmed without opinion by this Court ( 117 A.D.2d 1027, lv denied 67 N.Y.2d 888). Contrary to defendant's postconviction claim that the Supreme Court's decision in Cruz v New York ( 481 U.S. 186, revg 66 N.Y.2d 61) effects a retroactive change in the law requiring the vacatur of his conviction, we find that, even if we were to apply Cruz retroactively to this collateral appeal (see, Teague v Lane, 489 U.S. 288, reh denied 490 U.S. 1031; Graham v Hoke, 946 F.2d 982, 991-997, cert denied ___ US ___, 112 S Ct 890), the error in admitting his nontestifying codefendant's confessions was harmless beyond a reasonable doubt.
Based on defendant's own confession, his admissions to a third party who testified at trial, and other corroborative evidence, there is no reasonable possibility that the jury's assessment of defendant's guilt was affected by the codefendant's statements (People v Hamlin, 71 N.Y.2d 750, 758-759). While the submission to the jury of the issue of the voluntariness of defendant's own confession increases the potential prejudice from a codefendant's corroborative statements, defendant only indirectly challenged his confession, and there is nothing in the record to suggest that the jury did not accept his statements as voluntary and reliable (People v Hamlin, supra, at 759; People v Nelson, 171 A.D.2d 702, 703-704, lv denied 77 N.Y.2d 964).
While not controlling (see, People v Flores, 153 A.D.2d 585, 587, lv denied 75 N.Y.2d 770; People v Di Nocolantonio, 140 A.D.2d 44, mod 74 N.Y.2d 856), we also note that on the codefendant's direct appeal, we found the Cruz error to be similarly harmless with respect to the admission of this defendant's confession (People v Diaz, 157 A.D.2d 569, lv denied 76 N.Y.2d 733).
Concur — Wallach, J.P., Kupferman, Asch and Rubin, JJ.