Opinion
2010–11417 Ind. No. 1855/08
01-09-2019
The PEOPLE, etc., Respondent, v. Jason VILLANUEVA, Appellant.
Kevin Costello, Flushing, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick of counsel), for respondent.
Kevin Costello, Flushing, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
ORDERED that the judgment is affirmed.
We agree with the Supreme Court's determination denying those branches of the defendant's omnibus motion which were to suppress identification testimony. The pretrial showup identifications of the defendant were reasonable under the circumstances, and were not unduly suggestive (see People v. Santana, 159 A.D.3d 926, 927, 70 N.Y.S.3d 87 ; People v. Huerta, 141 A.D.3d 602, 603, 35 N.Y.S.3d 433 ; People v. Cedeno, 113 A.D.3d 695, 978 N.Y.S.2d 328, revd on other grounds 27 N.Y.3d 110, 31 N.Y.S.3d 434, 50 N.E.3d 901 ; People v. Peterson, 110 A.D.3d 1103, 1103, 973 N.Y.S.2d 785 ; People v. Julien, 100 A.D.3d 925, 926, 954 N.Y.S.2d 201 ; People v. Hicks, 78 A.D.3d 1075, 913 N.Y.S.2d 237 ; People v. Davis, 39 A.D.3d 873, 874, 835 N.Y.S.2d 311 ; People v. Fox, 11 A.D.3d 709, 784 N.Y.S.2d 565 ; People v. Grassia, 195 A.D.2d 607, 601 N.Y.S.2d 124 ).
The defendant's contentions that his Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 was violated by the admission into evidence of a statement made by a nontestifying codefendant to a detective following the codefendant's arrest, and the Supreme Court's failure to give the jury a proper limiting instruction with respect to the statement, are unpreserved for appellate review (see CPL 470.05[2] ; People v. Edwards, 160 A.D.3d 658, 659, 73 N.Y.S.3d 602 ; People v. Gilocompo, 125 A.D.3d 1000, 1001, 4 N.Y.S.3d 288 ; People v. Jenkins, 93 A.D.3d 861, 861, 940 N.Y.S.2d 874 ). In any event, the contentions are without merit. " Bruton does not apply, and no violation of the Confrontation Clause exists" when the challenged statement is not incriminating on its face, "but only become[s] so when linked with other evidence introduced at trial" ( People v. Caldwell, 150 A.D.3d 1021, 1022–1023, 55 N.Y.S.3d 311 ; see People v. Johnson, 27 N.Y.3d 60, 29 N.Y.S.3d 851, 49 N.E.3d 1143 ). The challenged statement did not directly implicate the defendant (see People v. Caldwell, 150 A.D.3d at 1023, 55 N.Y.S.3d 311 ; People v. Gilocompo, 125 A.D.3d 1000, 4 N.Y.S.3d 288 ), and, therefore, was not "facially incriminating" ( Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 ; see People v. Caldwell, 150 A.D.3d at 1023, 55 N.Y.S.3d 311 ).
The defendant's remaining contentions are without merit.
CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.