Opinion
September 26, 1994
Appeal from the Supreme Court, Queens County (Golia, J.).
Ordered that the judgment is affirmed.
We find that the trial court's denial of the defendant's severance motion and the ensuing admission of the redacted confessions of the two nontestifying codefendants violated the defendant's right to confrontation (see, Bruton v. United States, 391 U.S. 123). The confessions were not sufficiently redacted so that, when coupled with the two eyewitnesses' testimony, those confessions inferentially incriminated the nonconfessing defendant (see, People v. Khan, 200 A.D.2d 129; see also, People v. Wheeler, 62 N.Y.2d 867; People v. Hussain, 165 A.D.2d 538). However, even without the codefendants' statements, there is overwhelming evidence of the defendant's guilt. Thus, the admission of the codefendants' statements was harmless since "there is no reasonable possibility that the erroneously admitted evidence contributed to the conviction" (People v. Hamlin, 71 N.Y.2d 750).
The defendant's contention that the trial court should have submitted both murder counts to the jury in the conjunctive, rather than in the alternative, is unpreserved for appellate review. The defendant did not object to that part of the charge, and he failed to raise his claim of inconsistent verdicts prior to the discharge of the jury (People v. Johnson, 176 A.D.2d 818, revd on other grounds 80 N.Y.2d 798; People v. Thomches, 172 A.D.2d 786; People v. Carey, 151 A.D.2d 989; People v. Smith, 144 A.D.2d 505; People v. Paxhia, 140 A.D.2d 962). Furthermore, given the facts of this case, we decline to reach this issue in the exercise of our interest of justice jurisdiction.
The defendant's contention that his right to be present during every material stage of the trial was violated when the court considered defense counsel's motion for a mistrial in the defendant's absence is without merit (see, People v. Ferguson, 67 N.Y.2d 383; People ex rel. Lupo v. Fay, 13 N.Y.2d 253, cert denied 376 U.S. 958).
Finally, the sentence that was imposed is not excessive (see, People v. Suitte, 90 A.D.2d 80). Balletta, J.P., O'Brien, Copertino and Florio, JJ., concur.