The People, Appellant,v.Keith Johnson, Respondent.

Brief

N.Y.February 9, 2016

APL-2015-00050 To be argued by NOAH J. CHAMOY (15 minutes) _______________________________________________________ COURT OF APPEALS State of New York _______________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - KEITH JOHNSON, Defendant-Appellee. _______________________________________________________ A P P E L L A N T ’ S B R I E F _______________________________________________________ ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent Bronx, New York 10451 (718) 838-7142 (f) (718) 590-6523 chamoyn@bronxda.nyc.gov JOSEPH N. FERDENZI NOAH J. CHAMOY Assistant District Attorneys of Counsel _______________________________________________________ Date Completed: June 18, 2015 ii TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................. iv STATEMENT ........................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 3 THE FACTS The Indictment ............................................................................................................ 4 The Suppression Hearing ........................................................................................... 4 The Application To Introduce The Codefendant’s Grand Jury Testimony ........ 4 The Trial The Grand Jury Testimony Admitted Against The Codefendant ............. 8 The People's Case .......................................................................................... 10 The Codefendant's Case ............................................................................... 21 The Verdict and Sentence ............................................................................ 22 The Motion to Set Aside the Verdict ..................................................................... 23 The Appeal................................................................................................................. 23 ARGUMENT POINT The Nisi Prius Court’s Admission Of The Codefendant’s Grand Jury Testimony, Admitting No Wrongdoing To The Crimes Charged For Either Defendant, Did Not Violate Defendant’s Constitutional Right To Confront His Accuser. Bruton v. United States, 391 U.S. 123 (1968) ............................ 27 iii A. The Codefendant’s Grand Jury Testimony Did Not Violate Defendant’s Right To A Fair Trial Because It Was Not Facially Incriminatory As To Him. ................................. 27 B. Any Error By The Nisi Prius Court In Allowing The Admission Of The Codefendant's Grand Jury Testimony Was Harmless Beyond A Reasonable Doubt. ................................................................................................. 47 CONCLUSION ................................................................................................................... 65 iv TABLE OF AUTHORITIES U.S. SUPREME COURT CASES Page Bruton v. United States, 391 U.S. 123 (1968) ..............................................................passim Crawford v. Washington, 541 U.S. 36 (2004). .................................................................. 30 Cruz v. New York, 481 U.S. 186 (1987) ............................................................. 30,33,43,46 Delli Paoli v. United States, 352 U.S. 232 (1957) ............................................................. 30 Frazier v. Cupp, 394 U.S. 731 (1969) ............................................................................ 29,31 Gray v. Maryland, 523 U.S. 185 (1998) .........................................................................passim Harrington v. California, 395 U.S. 250 (1969) ............................................................. 49,53 Jackson v. Denno, 378 U.S. 368 (1964) ............................................................................. 31 Parker v. Randolph, 442 U.S. 62 (1979) ............................................................................ 43 Pointer v. Texas, 380 U.S. 400 (1965) ................................................................................ 29 Richardson v. Marsh, 481 U.S. 200 (1987) ...................................................................passim Schneble v. Florida, 405 U.S. 427 (1972) ............................................................ 37,43,48,64 Tennessee v. Street, 471 U.S. 409 (1985) ........................................................................... 43 FEDERAL CASES Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970) ............................................................. 47 United States v. Abramson, 54 F.Supp.2d 479 (D.C.V.I. 1999), aff’d 263 F.3d 160 (3d Cir. 2001) .................................................................................. 36 United States v. Belle, 593 U.S. 487 (3d Cir. 1979) .......................................................... 43 v United States v. Brown, 551 F.2d 639 (5th Cir. 1977), rev’d in part on other grounds upon reh’g 569 F.2d 236 (1978). ............................. 36 United States v. Curry, 977 F.2d 1042 (7th Cir. 1992) ..................................................... 45 United States v. Davis, 418 F.2d 59 (9th Cir. 1969) ......................................................... 45 United States v. Escobar, 50 F.3d 1414 (8th Cir. 1995) .................................................. 36 United States v. Hopkins, 77 F.3d 493 (10th Cir. 1996) .................................................. 44 United States v. Locklear, 24 F.3d 641 (4th Cir. 1994) .................................................... 45 United States v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002) .............................................. 47 United States v. Lung Fong Chen, 393 F.3d 139 (2d Cir. 2004) .................................... 30 United States v. Muhammad, 498 Fed.Appx. 251 (4th Cir. 2012) ................................. 45 United States v. Rubio, 709 F.2d 146 (2d Cir. 1983) ....................................................... 36 United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989) .................................................... 32 United States v. Wilkinson, 754 F.2d 1427 (2d Cir. 1985) .............................................. 32 Vincent v. Parke, 942 F.2d 989 (6th Cir. 1991) ................................................................ 45 NEW YORK STATE CASES People v. Allan, 192 A.D.2d 433 (1st Dept. 1993) ........................................................... 57 People v. Ashwal, 39 N.Y.2d 105 (1976) ........................................................................... 61 People v. Carmona, 82 N.Y.2d 603 (1993) ....................................................................... 60 People v. Davis, 58 N.Y.2d 1102 (1983) ........................................................................... 30 People v. Drew, 160 A.D.2d 1100 (3d Dept. 1990) ......................................................... 50 People v. Eastman, 85 N.Y.2d 265 (1995) ................................................................... 33,49 vi People v. Falu, 138 A.D.2d 510 (2d Dept. 1988) ............................................................. 57 People v. Freier, 228 A.D.2d 520 (2d Dept. 1996) ........................................................... 57 People v. Goldstein, 6 N.Y.3d 119 (2005) ........................................................................ 30 People v. Hale, 136 A.D.2d 960 (4th Dept. 1988) ........................................................... 61 People v. Hamlin, 71 N.Y.2d 750 (1988) ..................................................................... 48,49 People v. Hooper, 48 A.D.3d 292 (1st Dept. 2008) ......................................................... 56 People v. Jackson, 22 N.Y.2d 446 (1968) .......................................................................... 28 People v. Johnson, 224 A.D.2d 635 (2d Dept. 1996) ...................................................... 35 People v. Johnson, 300 A.D.2d 677 (2d Dept. 2002) ...................................................... 56 People v. Kyser, 26 A.D.3d 839 (4th Dept. 2006) ........................................................... 42 People v. Martin, 58 A.D.3d 519 (1st Dept. 2009) ........................................................... 63 People v. Mitchell, 180 A.D.2d 906 (3d Dept. 1992) ....................................................... 64 People v. Morris, 21 N.Y.3d 588 (2013) ............................................................................ 30 People v. Mosley, 42 A.D.2d 1037 (4th Dept. 1973) ....................................................... 57 People v. Nguyen, 90 A.D.3d 1330 (3d Dept. 2011) ....................................................... 56 People v. Nussbaum, 142 A.D.2d 739 (2d Dept. 1988) .................................................. 39 People v. Pagan, 87 A.D.3d 1181 (3d Dept. 2011) ..................................................... 30,35 People v. Paulino, 187 A.D.2d 736 (2d Dept. 1992) ........................................................ 35 People v. Smith, 2 N.Y.3d 8 (2004) ............................................................................... 54,56 People v. Smith, 97 N.Y.2d 324 (2002) ............................................................................. 48 People v. Tucker, 72 N.Y.2d 849 (1988) ........................................................................... 43 vii People v. Vega, 276 A.D.2d 349 (1st Dept. 2000) ........................................................... 57 People v. West, 72 N.Y.2d 941 (1988) ............................................................................... 60 People v. Wheatman, 31 N.Y.2d 12 (1972) .................................................................. 31,36 People v. Wheeler, 62 N.Y.2d 867 (1984) ......................................................................... 34 People v. Williams, 165 A.D.2d 747 (1st Dept. 1990) .................................................... 57 People v. Williams, 58 A.D.2d 943 (3d Dept. 1977) ........................................................ 61 People v. Yarrell, 146 A.D.2d 819 (2d Dept. 1989), rev’d for reasons stated by dissent 75 N.Y.2d 828 (1990) ........................................................................................ 43 MISCELLANEOUS CJI.2d[NY] [Credibility of Witnesses: Police Testimony] ............................................... 57 Penal Law 155.25 .................................................................................................................. 40 Penal Law §160.10(2) ........................................................................................................... 39 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- KEITH JOHNSON, Defendant-Appellee. RESPONDENT’S BRIEF STATEMENT By permission of the Honorable Leland G. DeGrasse, Associate Justice of the Supreme Court of the State of New York, Appellate Division, First Department (Appellate Division), granted on February 17, 2015 (A.2),1 the People of the State of New York appeal from an order of the Appellate Division, entered on December 16, 2014 (A.3). People v. Johnson, 123 A.D.3d 573 (1st Dept. 2014). That order reversed, “on the law,” the judgment of the Supreme Court of the State of New York, Bronx County (William I. Mogulescu, J.) (Bronx County Supreme Court), rendered July 19, 2011, convicting defendant, following a jury trial, of robbery in the second degree, petit larceny, menacing in the second degree, and possession of an imitation pistol and sentencing him to an aggregate term of five years in prison. 1 Parenthetical citations preceded by “A” refer to the Appendix. Bracketed citations preceded by “VD” and “T” refer to the minutes of jury selection and trial, respectively. 2 On July 19, 2011, Bronx County Supreme Court (Mogulescu, J.), entered a stay of execution of sentence pending appeal and affixed bail that the Appellate Division extended until its decision. On April 20, 2015, Bronx County Supreme Court (Mogulescu, J.), granted defendant release on his own recognizance. 3 QUESTIONS PRESENTED 1. Whether the admission into evidence of a codefendant’s grand jury testimony, admitting no wrongdoing to the crimes charged for defendant, at their joint trial constitutes a “facially incriminating confession” of a codefendant under Bruton v. United States, 391 U.S. 123 (1968), and its progeny, and thereby violates the defendant’s constitutional right to confront a witness against him. The nisi prius court found the testimony admissible only against the codefendant, and issued to the jury repeated limiting instructions to that effect. The Appellate Division majority disagreed, reasoning that “[a]lthough the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was ‘facially incriminating’ as to defendant within the meaning of Bruton” (A.6-7). The dissenting justice found the codefendant’s “grand jury testimony was not facially incriminating because it did not implicate defendant in any of the conduct underlying his conviction” (A.15). 2. Whether the admission of the codefendant’s grand jury testimony, if in error, was harmless beyond a reasonable doubt. The Appellate Division could not “say that admission of the codefendant's statement was harmless,” based on “the extensive references to defendant,” “the indications that defendant had purported to set up a drug deal,” and “problematic aspects of the People’s evidence” (A.7-8). The dissenting justice found the evidence of defendant’s guilt “overwhelming,” while noting that the trial defense of a “coverup” was “a red herring” and the “majority’s passing reference” to “allegedly problematic aspects of the People’s evidence” was “unpersuasive” (A.16-17, n.1). 4 THE FACTS The Indictment By indictment 2877/2009, filed July 31, 2009, the Grand Jury of Bronx County accused defendant, acting-in-concert with Joe Rushing (hereinafter “codefendant” or “Rushing”),2 of second-degree robbery (two counts), third-degree robbery, fourth- degree grand larceny, petit larceny, fifth-degree criminal possession of stolen property, unlawful sale, possession, or use of an imitation pistol or revolver; and accused defendant of second-degree menacing. The Suppression Hearings Beginning on February 24, 2011, the Bronx County Supreme Court (Mogulescu, J.), conducted a combined People v. Huntley, 15 N.Y.2d 72 (1965), U.S. v. Wade, 388 U.S. 218 (1967), and Mapp v. Ohio, 367 U.S. 643 (1961), hearing, and denied the suppression motions. No issues are raised with respect to this ruling. The Application To Introduce Codefendant’s Grand Jury Testimony On March 7, 2011, before jury selection began, the prosecutor informed the court that she had no intention of introducing defendant’s “self-serving” statements to law enforcement (A.22 [VD.3]); statements in which defendant admitted he observed a toy firearm in the Jeep (see A.1698 [T.1996]). The prosecutor added that 2 Rushing and defendant were jointly tried. The jury convicted Rushing of petit larceny and fifth-degree criminal possession of stolen property. On April 1, 2011, he was sentenced to concurrent definite one-year jail terms. Rushing served his sentence, and has not filed a Notice of Appeal. 5 she “ha[d]n’t decided on” whether to seek to introduce codefendant’s Grand Jury testimony. Codefendant’s counsel noted he would need an answer to prepare his client’s defense. Defendant’s attorney said nothing (A.22-23 [VD.3-4]). After the trial court provided initial instructions to and questioned the first panel of prospective jurors,3 the prosecutor informed the court that she “had a chance to look over” the grand jury testimony, and that she intended to ask permission to utilize it at trial (A.24-26 [VD.61-63]). The next morning, the court asked the defense attorneys to look over that testimony, containing proposed redactions by the prosecutor, and to inform it of their positions (A.27-28 [VD.170-71]). At end of the day, codefendant’s counsel objected to the redactions, and defendant’s counsel said he would “have to go page by page” to address his position (A.29-30 [VD.313-14]). Codefendant’s counsel agreed with the court’s assessment that he felt the prosecutor should introduce the entire statement, except for “any references to any prior [criminal] record . . . or drug programs” (A.30-31 [VD.314- 15]). Defendant’s counsel then addressed his proposed redactions. Initially, he agreed that the statement could contain unredacted references to defendant (A.34-35, 37, 46 3 When asked, defendant’s counsel said he had no “problem” with the trial court’s proposed initial instruction to these prospective jurors, including the court’s intention to “tell them that during the course of the incident that [defendant] was shot” (A.181-82 [VD.13-14]). The court then instructed the two panels of prospective jurors that the case involves “an allegation, a charge, that [defendants], acting together, participated in a robbery of an undercover narcotics police officer.” The court also informed the panels that “there will be evidence that during the course of the incident that [defendant] was shot” by the undercover officer (A.183-84, 189 [VD.22-23, 342]). 6 [VD.318-19, 321, 330]), as well as codefendant’s narrative of what happened outside and inside the Jeep leading up to his being shot (compare A.32-34, 37 [VD.316-18, 321], with A.140-41 [T.1312-13]).4 Defendant’s counsel ceased argument. The court adjourned the proceedings after counsel stated he had yet to review the last few pages of the proposed testimony (A.53 [VD.337]). Jury selection later concluded. After the court issued its preliminary instructions to the empaneled jury, defendant’s counsel moved for a severance (A.54 [T.16]). He focused the court’s attention on the grand jury testimony near the end of the statement (see A.165-66 [T.1336-37])—wherein codefendant admitted to possessing the “buy money,” the “fruit of the crime.” Counsel suggested no “limiting instruction” would prevent the jury from utilizing that testimony against defendant (A.54-58, 63-65 [T.16-20, 25-27]). The court identified the question presented as “essentially” a Bruton issue (A.59 [T.21]). Citing cases, the prosecutor responded, in substance, that this statement was solely about the codefendant, and “implicated the defendant only when linked with other evidence introduced at trial” (A.60-63, 89-90 [T.22-25, 50-51]). The trial court asked defendant’s counsel to cite a case “that stands for the proposition that something that does not directly inculpate the non-declarant can’t be used[.]” (A.64 4 As reflected in the statement read to the jury, the individual questions and answers that defendant’s counsel initially identified for redaction (A.34 [VD.318]) came right after codefendant’s narrative (for which counsel initially did not seek redaction) that placed defendant in the Jeep, when “[s]omeone else . . . approached the car . . . with money in his hand talking about where is the stuff? . . . I backed up to pull off . . . The money dropped in the car and bullets are flying” (A.140-41 [T.1312-13]). 7 [T.26]). It also “muse[d]” about how it would be “hard pressed under [the] circumstances” to understand “what the argument would be as to why the undercover shot anybody if there was no issue as to buy money” (A.59 [T.21]). Nonetheless, the court postponed argument and addressed proposed redactions by codefendant’s counsel (A.65-87 [T.27-48]). When asked for input during that discussion, defendant’s counsel stated that he now did not “agree that any reference” to defendant should remain in the statement (A.69 [T.31]). The next morning, the trial court denied the severance application. It found the statement, except for one part, was being introduced as “a false exculpatory statement” rather than for the truth of the matter asserted in it (A.94-96 [T.55-57]). It added that the statement, itself, was “not facially incriminat[ory] as to [defendant],” and that “nothing in [codefendant’s] statement [] suggests [defendant] was involved in any illegal conduct” (A.95-96 [T.56-57]). The prosecutor clarified her intention to rely on the grand jury testimony to argue in support of codefendant’s guilt that the “undercover [] approach[ed] the car and [said], ‘Where’s the stuff,’” that the “back window of his vehicle was shot out” and that codefendant “had the pre-recorded buy money on him” (A.96 [T.57]). After receiving clarification, the court added that the statement was still “exculpatory as to both of them” (A.97-98 [T.58-59]). The court noted that it expected no “argument” over whether “the window of the car was shot out, that the undercover did the shooting and that undercover was in the general area of the car” (A.96 [T.57]). Defendant’s counsel suggested, “There may be” (A.97 8 [T.58]).5 He then took exception based on what “the People assert” they will seek to introduce for its truth, adding that his “client is charged with acting in concert” with codefendant (A.97-98 [T.58-59]). The court agreed to give a limiting instruction and offered defendant’s counsel the opportunity to craft one (A.98-100 [T.59-61]).6 The Trial The Grand Jury Testimony Admitted Against Codefendant7 As read to the jury by a stenographer and prosecutor, before the Grand Jury, Joe Rushing testified that around 11:00 p.m. on July 7, 2009, he and defendant— friends for about four years—drove around in Rushing’s girlfriend’s silver Jeep in an attempt to locate defendant’s Mustang, which defendant had earlier reported as stolen. Around midnight, Rushing stopped in front of a fire hydrant at East 167 Street so that defendant could get something to eat at a restaurant near a 24-hour check 5 Given defendant’s counsel’s consent during jury selection to the court’s preliminary instruction that an undercover officer shot defendant (an instruction that was issued before the prosecutor stated her intention to introduce codefendant’s grand jury testimony), it is unclear what counsel meant by this statement (A.181-84, 189 [VD.13-14, 22-23, 342]). 6 Mid-trial, defendant’s counsel asked that the court to redact the phrase, “[W]here is the stuff,” as well as the question and answer, “You were [] pulling off immediately? Do you see what [defendant] is doing at this point? Answer: I don’t see what he was doing at this point” (A.117-20 [T.1290-93]). The court noted that “there’s no issue about [defendant] being in the car,” and stated it would abide by its earlier ruling (A.119, 121 [T.1292, 1294]). 7 The trial court issued limiting instructions before and after this testimony, in its final instructions to the jury, and in response to a jury note requesting to rehear that testimony, that this testimony was admissible only as to Rushing, could not be considered “in any way” as to defendant, and must be “completely disregard[ed]” as to defendant (A.171-80 [T.1306- 07, 1340-41, 2119-20, 2182]). 9 cashing business. Defendant “got out” of the Jeep, “went in,” “got food,” and “came back.” Rushing, who had left the engine running and was listening to music, saw no one walking with defendant; “He wasn’t with nobody,” Rushing said. Defendant entered the front passenger seat. Then, “someone came to the vehicle talking about where is the stuff and reaching money out.” Rushing, feeling “it was time for me to leave,” backed up and “pulled off.” As he drove off, Rushing did not see what defendant was doing. “The money dropped” into the Jeep. Then, “bullets [were] flying.” The rear window shattered, and defendant said, “I’m hit” (Stenographer Marie Triolo: A.140-41, 143-44, 147, 159-62, 166 [T.1312-13, 1315-1316, 1319, 1330-33, 1337]). Defendant had been shot in the right shoulder. Rushing drove defendant to the hospital. He stopped behind a car at a red light near Jerome Avenue. There, he heard police say, “Freeze, get out of the car.” Rushing put both of his hands out of the Jeep. The police officers “pull[ed him] out,” “beat” him, and arrested him (Triolo: A.141, 161, 168-69 [T.1313, 1332, 1339-40]). Rushing denied seeing a toy firearm in the Jeep or in defendant’s hands at any time. Rushing explained the man “left it [the money] in my car” as he drove off and the man shot at him, and admitted placing that money (the prosecutor referred to it as “$30 prerecorded buy money”) in his pants pocket. Saying he was “scared,” Rushing asked, “What am I supposed to do?” (Triolo: A.162-66, 168 [T.1333-37, 1339]). 10 The People’s Case On the evening of July 7, 2009, Sergeant John Urena led a Bronx Narcotics midnight field team—with Detective Thomas Baldwin, his driver and designated arresting officer, Det. Chet Wilson and Det. Clarence Alston in the “chase car,” and Det. Frank Hernandez and his partner in the prisoner transport—in buy and bust operations in The Bronx. Det. Daniel Rivera served as the primary “ghost,” shadowing undercover officers 44 (UC44) and 110 (UC110). UC44 concealed a Kel radio transmitter. Sgt. Urena held the receiver, and only Det. Baldwin and he could hear UC44’s conversations (A.266-27, 280-88, 521, 608-09, 661-64, 935-36, 960, 976- 77, 985-86, 1093-94, 1272-74, 1327, 1346, 1398-99, 1403, 1512, 1534 [Urena: T.92-93, 106-14; Rivera: T.348, 434-35; Baldwin: T.487-90; Hernandez: T.775-76, 800, 816-17; Alston: T.831-32; Wilson: T.990-91; UC110: T.1201-03, 1566, 1585; UC44: T.1636-37, 1642, 1751, 1805]). Earlier that July, UC44, a 7-year veteran undercover officer, transferred to Bronx Narcotics. After working a holiday shift with another team, he joined this team for one prior shift. UC44 had met Det. Baldwin as a rookie nine years before, once participated in training with Det. Rivera, and met UC110 a few times, though he was not close to them. He had not previously met the others (A.288, 345, 429-30, 514, 570-71, 602, 607, 659-60, 958, 985-86, 1093, 1271, 1390-95, 1459, 1571 [Urena: T.114, 171, 254-55; Rivera: T.341, 397-98, 428, 433; Baldwin: T.485-86; Hernandez: T.798; Alston: T.831-32; Wilson: T.990; UC110: T.1200; UC44: T.1629-34, 1698, 1842]). 11 After midnight, UC44, clad in a short-sleeve shirt, cargo shorts, and “du rag,” approached defendant, clad in a black “skull” shirt and denim pants Defendant was standing with his back to 1212 Grant Avenue, facing a well-lit 24-hour check-cashing business across the street (A.523-25, 613-14, 650, 1275-77, 1400, 1405-07, 1430-32, 1439 [Rivera:T.350-52, 439-40, 476; UC110: T.1204-06; UC44: T.1639, 1644-46, 1669- 71, 1678]). UC44 thought defendant might be selling narcotics because he was loitering late at night, shortly after a rainfall, in hot and muggy conditions. UC44 had not seen defendant offer to sell narcotics (A.285, 522, 937-38, 1350-51, 1400, 1404, 1407, 1482- 83, 1571 [Urena: T.111; Rivera: T.349; Hernandez: T.777-78; UC110: T.1588-89; UC44: T.1639, 1643, 1646, 1721-22, 1842]). Det. Rivera, on foot, watched from across the street, as UC110 watched from an unmarked car at the corner. Sgt. Urena and Det. Baldwin parked near East 167 Street and Morris Avenue, and had an obstructed sightline. Other officers parked out- of-sight. Det. Rivera radioed the approach, location, and suspect description (A.285, 289, 319-22, 385, 522, 525, 563, 664-68, 937-38, 971-74, 987, 1094, 1097, 1116-20, 1275-78, 1378 [Urena: T.111, 115, 145-48, 211; Rivera: T.349, 352, 390; Baldwin: T.490-94; Hernandez: T.777-78, 811-14; Alston: T.833; Wilson: T.991, 994, 1013-17; UC110: T.1204-07, 1616]). Talking low, but loud enough for Sgt. Urena to hear, UC44 asked, “What’s good?” He mentioned, “Crack.” Defendant said, “I could get that,” and asked if 12 UC44 was a “cop.” UC44 quickly and discretely raised his shirt to show he did not have a wire. Defendant said, “No problem,” and told UC44 to follow him (A.289, 414, 434-35, 666-67, 1408, 1411-14, 1485, 1488-90 [Urena: T.115, 239, 259-60; Baldwin: T.492-93; UC44: T.1647, 1650-53, 1724, 1727-29]).8 UC44 followed defendant around the corner onto East 167 Street heading toward Morris Avenue. UC110 turned onto East 167 Street and parked near Morris Avenue, the next block, where he watched from over his left shoulder. Det. Rivera walked to a better vantage point directly across the street (A.526-27, 545, 1275, 1278- 79, 1285-87, 1341-42, 1378, 1408, 1415 [Rivera: T.353-54, 372; UC110: T.1204, 1207- 08, 1214-16, 1580-81, 1616; UC44: T.1647, 1654]). Defendant approached a silver Jeep Liberty parked near a fire hydrant in front of a chicken restaurant; the vicinity of which was known as a drug-selling location. He entered the front passenger seat. UC44 approached the open window. Det. Rivera and UC44 saw Joe Rushing in the driver’s seat. Det. Rivera radioed the Jeep’s description, that defendant entered the Jeep, Rushing’s description, and UC44’s location. UC110 and Det. Rivera could not see what happened inside the Jeep (A.290-91, 386-88, 526- 8 UC44 only described a “brief narcotics related conversation,” and said he asked defendant for $30 worth of crack-cocaine (A.1408, 1411, 1485, 1488 [UC44: T.1647, 1650, 1724, 1727]). Sgt. Urena did not recall whether he heard UC44 say that (A. 435 [Urena:T.260]). Det. Baldwin, who admitted he was “bored” and not paying attention, only heard someone say, “I’ll get it for you” (A.667, 693-95, 773 [Baldwin:T.493, 518-20, 598]). On cross-examination, Sgt. Urena replied affirmatively to the question, “And do you recall anybody asking [UC44] if he was a cop[?]” He acknowledged he had not mentioned this fact in prior interviews, saying, “[T]hey never asked me that question” (A.435-36, 469-70 [Urena:T.260-61, 294-95]). 13 29, 575-76, 646, 1275, 1279-82, 1295-97, 1408-12, 1415, 1432, 1435-37, 1493-96, 1575 [Urena: T.116-17, 212-14; Rivera: T.353-56, 402-03, 472; UC110: T.1204, 1208-11, 1224-26; UC44: T.1647-51, 1654, 1671, 1674-76, 1732-35, 1846]).9 Defendant told UC44, “Give [me] the money.” UC44 replied, “No, Give me the stuff.” Defendant reached into his groin area—where sellers commonly stash narcotics—as Rushing asked to count the money. Believing he was about to receive narcotics, UC44 reached over defendant and handed Rushing $30 in pre-recorded buy money.10 As UC44 leaned back out to take drugs from defendant, defendant pulled a pistol from his pants. Believing it to be real, UC44 stepped back, raised his hands slightly,11 and moved out of its path (A.1409-17, 1445-46, 1496-98, 1502, 1508-13, 1564K, 1564O-64P, 1616, 1632-33 [UC44: T.1648-56, 1684-85, 1735-37, 1741, 1747- 52, 1825, 1829-30, 1887, 1903-04]). UC44 exclaimed, “Gun, Gun, Gun”—signaling he had a gun pointed at him— to the field team. Sgt. Urena ordered everyone to “move in.” The Jeep accelerated westbound (A.291, 454, 530-31, 938, 1275, 1282, 1410, 1417, 1495-96 [Urena: 9 UC110 was not asked to identify defendant in court. When defendant entered the Jeep, UC110 could only see the Jeep had a driver (A.1279-80 [UC110: T.1208-09]). 10 Sgt. Urena heard UC44 say, “I gave you $30” He did not recall hearing, “Give me the money, I want to count it” (A.291, 414, 440-41 [Urena:T.117, 239, 265-66]). UC44 did not recall saying “I gave you $30” (A.1601 [UC44: T.1872]). UC44 explained the reception on the “Kel” transmitters “go in and out” (A.1467, 1564Q-64R [UC44: T.1706, 1831-32]). 11 Det. Rivera and UC110 could not see UC44’s hands from their respective vantage points; they were blocked by the Jeep (A.577-78, 1382 [Rivera:T.404-05; UC110: T.1621]). UC44’s hands never went above waist-level (A.1632-33 [UC44: T.1903-04]). 14 T.117,279; Rivera: T.357-58; Hernandez: T.778; UC110: T.1204, 1211; UC44: T.1649, 1656, 1734-35]). As that happened, defendant turned his body toward, and pointed the gun partway out the window at UC44. Defendant had UC44 “dead to rites.” UC44, who had a police-issued Glock model 26 secreted on his hip, drew the Glock and fired once, striking the rear passenger window.12 In six years as an undercover officer with over five-hundred narcotics purchases, UC44 had never brandished his firearm before (A.1391, 1396, 1400-01, 1410, 1413, 1416-20, 1429-30, 1446-47, 1524, 1564E-64F, 1609 [UC44: T.1630, 1635, 1639-40, 1649, 1653, 1655-59, 1668-69, 1685-86, 1763, 1819-20, 1880]). It was almost instantaneous between UC44 yelling “Gun,” and the gunshot (A.585, 611-12, 1282-83, 1318-19, 1356-58, 1418, 1508, 1513 [Rivera: T.412, 437-38; UC110: T.1211-12, 1247-48, 1594-96; UC44: T.1657, 1747, 1752]). After the gunshot, Det. Rivera radioed, “Shots fired,” and the Jeep’s direction (A.291, 441 530- 31, 550, 578, 668, 670, 720, 938, 993-94, 1098-99, 1119, 1275-76 [Urena: T.117,266; Rivera: T.357-58, 377, 405; Baldwin: T.494, 496, 545; Hernandez: T.778; Alston: T.839-40; Wilson: T.995-96, 1016; UC110: T.1204-05]). Det. Baldwin and Sgt. Urena pursued the Jeep driving westbound on East 167 Street. Det. Alston and Det. Wilson blocked the service road to the Grand 12 To prevent accidental discharges, the NYPD-issued Glock 26 had a modification increasing its “trigger pull” (A.831, 846, 1401-02 [Det. John Muzek: T.660, 675; UC44: T.1640-41]). 15 Concourse. The Jeep travelled under the Grand Concourse overpass (A.291, 324-25, 668-69, 994-96, 1568 [Urena: T.117, 150-51; Baldwin: T.494-95; Alston: T.840-42; UC44: T.1839]). At the same time, UC44 met up with Det. Rivera. UC110 picked them up. UC44 was shaking, his hands were trembling, and he kept touching himself to check if he had been shot. UC44 said the suspect had tried to rob him and had a firearm. Det. Rivera put that over the radio. UC110 pursued the Jeep (A.455-56, 530-31, 534-35, 587, 1276, 1283, 1287, 1289, 1411, 1419-21 [Urena: T.280-81; Rivera: T.357-58, 361- 62, 414; UC110: T.1205, 1212, 1216, 1218; UC44: T.1650, 1658-60]). The Jeep got stuck behind traffic at a red light on East 167 Street between Gerard and River Avenues. Det. Baldwin and Sgt. Urena, who had never lost sight of the Jeep, drew their firearms, and approached. Det. Wilson and Det. Alston, who arrived right behind them, did the same (A.291-92, 669-72, 996-99, 1099-1100 [Urena: T.117-18; Baldwin: T.495-98; Alston: T.842-45; Wilson: T.996-97]). By happenstance, Lt. Enrique Rodriguez of the 44 Precinct, a rookie training officer and a rookie officer were parked in a marked van in front of a Dunkin Donuts, facing eastbound on the same block as the Jeep. Lt. Rodriguez saw four men in plain clothes with guns drawn coming toward the Jeep. He exited the van and drew his firearm. On approach, he saw police shields and recognized Det. Baldwin, whom he knew from arrests Det. Baldwin had processed at his precinct; he did not recognize the others (A.297-98, 1131-34, 1143 [Urena: T.123-24; Rodriguez: T.1062-65,1074]). 16 Det. Baldwin approached the driver’s door. As Lt. Rodriguez looked on, Det. Baldwin yelled, “Police, show me your hands,” and banged on the window with a small flashlight. There was a sound of glass shattering. The driver’s window did not crack. Det. Baldwin ordered Rushing to open the locked door, pulled Rushing from the Jeep when he did, and put him on the ground. Det. Baldwin briefly looked inside the Jeep for passengers, and then he and Lt. Rodriguez walked around the Jeep to assist Sgt. Urena (A.295-96, 443, 669-73, 705, 723-24, 743, 756-57, 999-1000, 1133-34, 1139, 1170 [Urena: T.121-22, 268; Baldwin: T.495-99, 530, 548-49, 568, 581-82; Alston: T.845-46; Rodriguez: T.1064-65, 1070, 1101]).13 In the meantime, Sgt. Urena removed defendant from the front passenger seat. He saw a firearm, covered in blood, between the front passenger seat and door. Sgt. Urena escorted defendant to the Jeep’s rear. Defendant brushed up against the Jeep. Sgt. Urena ordered defendant to the ground, and noticed his right upper arm was bleeding (A.292-93, 313, 355-57 [Urena: T.118-19, 139, 181-83]). Det. Wilson handcuffed defendant. Because defendant was bloody, Det. Wilson only patted down his clothing. No one searched defendant (A.292-93, 356, 770, 1100-01 [Urena: T.118-19,182; Baldwin: T.595; Wilson: T.997-98]). 13 From the driver’s side of the Jeep, Lt. Rodriguez could not see what was happening on the passenger’s side. At a firearms discharge hearing later the day of the shooting, he said that Sgt. Urena broke that window. He explained he had not seen it, but assumed Sgt. Urena broke the window because he heard glass shattering when Sgt. Urena was there (A.1137-39, 1152-56, 1168, 1170 [Rodriguez: T.1068-70, 1083-87, 1099, 1101]). 17 Lt. Rodriguez and Det. Baldwin saw defendant secured on the ground. They peered inside the Jeep and saw the firearm. Without searching, Sgt. Urena closed the Jeep door to secure the firearm. Lt. Rodriguez asked Sgt. Urena what had happened, and defendant interjected, “They fucking shot me.” Sgt. Urena told Lt. Rodriguez of the shooting at East 167 Street and Grant Avenue, and Lt. Rodriguez took command of securing both locations. An ambulance was called (A.293-96, 302-03, 408-09, 673- 74, 678-79, 1133, 1137-42 [Urena: T.119-22, 128-29, 233-34; Baldwin: T.499-500, 504- 05; Rodriguez: T.1064, 1068-73]). On the other side of the Jeep, Det. Alston searched Rushing, and recovered $30 in cash from his front pants pocket (A. 673-754, 702, 1000 [Baldwin: T.499-501, 527; Alston: T.846]). Det. Alston handed that money to Det. Baldwin. Det. Baldwin determined it was the pre-recorded buy money; in addition to the serial numbers, he had previously marked the money by filling in the “O” in “God” (A.675-77, 780-81, 1001, 1009-10 [Baldwin: T.501-03,605-06; People’s Exhibit 38 [buy money]: T.503); Alston: T.847,855-56]). Defendant and Rushing were already secured when UC110, UC44, and Det. Rivera arrived. UC44 and UC110 stayed in the unmarked car.14 UC44 relinquished his 14 Det. Rivera exited the car, approached the Jeep, and saw the bloody passenger seat and firearm inside (A.534, 592, 742 [Rivera: T.361, 419; Baldwin: T.567). Sgt. Urena, Det. Rivera, Det. Baldwin, and Lt. Rodriguez testified that Exhibit 7, a photograph, displays the position of the firearm inside the Jeep as each observed it (A.329, 548, 678-79, 779, 1140, 1878 [Urena: T.155; Rivera: T.375; Baldwin: T.504-05, 604; Rodriguez: T.1071; People’s Exhibit 7: T.155). 18 firearm to Sgt. Urena. One round was missing. Sgt. Urena asked, “Are you okay?” UC44 said, “Yes.” Sgt. Urena did not ask what happened (A.294, 390-92, 416, 531-32, 589-90, 1276, 1289-90, 1294, 1420, 1422-25, 1526-28, 1535 [Urena: T.120, 216-18, 241; Rivera: T.358-59, 416-17; UC110: T.1205, 1218-19, 1223; UC44: T.1659, 1661- 64, 1765-67, 1806]). Separately, Det. Baldwin approached the unmarked car. UC44 identified defendant and Rushing, and told Det. Baldwin what happened (A.783, 1422-23, 1425 [Baldwin: T.608; UC44: T.1661-62, 1664]). Sgt. Urena ordered UC110 to drive UC44 to the hospital. He gave that order to protect the undercover officers’ identities at the scene, and because in any shooting, the officer involved must be examined for “trauma” and tested for sobriety. Det. Rivera joined them so he could inform hospital personnel he was law enforcement, which they could not do (A.296, 420-21, 452, 535-36, 592-94, 1161, 1290, 1424-25 [Urena: T.122, 245-46, 277; Rivera: T.362-63, 419-21; Rodriguez: T.1092; UC110: T.1219; UC44: T.1663-64]). UC110 drove UC44 and Det. Rivera to Jacobi Hospital. En route, they talked about what occurred. UC44 had “ringing” in his ears. At the hospital, UC44 had an excruciating headache. He was given a breathalyzer test; it was negative for alcohol (A.536, 1291, 1302, 1425-27, 1527 [Rivera:T.363; UC110: T.1220, 1231; UC44: T.1664-66, 1766]). Back at the Jeep, an ambulance arrived. Paramedics treated defendant and took him to Lincoln hospital. Det. Hernandez traveled with him (A.296, 313, 464, 678, 19 940-43, 1142 [Urena: T.122, 139, 289; Baldwin: T.504; Hernandez: T.780-83; Rodriguez: T.1073]). At Lincoln Hospital, Det. Hernandez watched medical personnel cut off defendant’s clothing, and place them in a plastic bag. He took the bag and placed it under defendant’s gurney (A.943-44, 947-49 [Hernandez: T.783-84, 787-89]). Later, Det. Glen Jacklitch arrived and took the bag of clothes from the gurney. He gave the bag to Crime Scene Unit (CSU) Det. Coleen Gillis and her partner, who examined the clothes. They photographed defendant and the clothes before sending the clothes to the NYPD lab (A.897-900, 945-46, 954-55, 1173-79, 1184-85, 1198 [Jacklitch: T.734- 37; Hernandez: T.785-86, 794-95; Gillis: T.1104-10, 1128; People’s Exhibits 53, 53A, 53B [clothing]: T.1114-15]). Det. Robert Corn, assigned to guard defendant at the hospital, received a bullet fragment from the doctor who performed surgery on defendant (A.801-02, 1267-68 [Corn: T.1196-97; People’s Exhibit 43 [bullet fragment]: T.631-32]). In the meantime, around 2:30 a.m., CSU Det. Patrick Parke arrived at the Jeep. He took photographs, and collected the firearm from the floor between the seat and front passenger door. He thought it was a real Walther PPK (A.478-83, 509, 679, 742, [Parke: T.302-07, 333; Baldwin: T.505, 567; People’s Exhibit 7; People’s Exhibit 21 [imitation firearm]: T.305]. At the same time, CSU Det. Shimicka Meadows examined 20 the shooting location, took photographs, and recovered a spent shell casing (A.1021, 1025-28, 1034 [Meadows: T.868, 872-75, 881]).15 Separately, Internal Affairs Det. Raymond Ramos canvassed the area for video surveillance around the shooting location and the Jeep. He found internal cameras at the Dunkin Donuts, and two exterior cameras at the check cashing business, but no camera pointed toward either location (A.914-16, 918 [Ramos: T.753-55, 757]). Later that day, Det. Andy Reinuer, an NYPD Criminalist, received the imitation pistol. He examined it for fingerprints without success—he only finds fingerprints one-third of the time—and took swabs of blood from the grip, trigger, and frame. The Office of the Chief Medical Examiner (OCME) later determined the swabs contained defendant’s DNA (A.858-64, 868, 882-83, 1071-78 [Reinuer: T.691- 97, 701, 715-16; OCME Criminalist J. Lucas Herman: T.932-39]). On July 15, 2009, the NYPD Trace Evidence Laboratory received the bags of clothes taken from Lincoln Hospital. Criminalist Jason Berger examined them. The shirt had two holes, with one on the “right side” of the shoulder area that had “bullet wipe,” or residue consistent with the passage of a bullet. In the front right pocket of 15 Det. John Muzek of the NYPD Firearm Analysis Section examined the bullet, but could not match it to a firearm due to its severe deformity; the deformity indicated it had struck something hard. He examined the shell casing and found it consistent with being fired from a Glock model 26 (A.803-05, 808-09, 820-21 [Muzek: T.632-34, 637-38, 649-50]). He also examined the imitation pistol. In his opinion, it resembled a real Walther PPK (A.813- 16 [Muzek: T.642-45; People’s Exhibit 21; People’s Exhibit 44 [Walther PPK]: T.644]. The court charged the jurors that the issue of whether it appeared to be a firearm was for them to decide (A.816 [T.645]). 21 defendant’s shorts, he found a glass pipe with what the Controlled Substance Analysis section later determined was cocaine residue (A.1212-17, 1222-23, 1228-29, 1231-34, 1247-51, 1257, 1259 [Berger: T.1142-47, 1152-53, 1158-59, 1161-64; People’s Exhibit 53; Criminalist Shanley Young: T.1177-81, 1187, 1189]). UC44 filled out no paperwork. Since it was his first and only shooting, he had asked a supervisor what he should do, and was directed to his union delegate. The delegate told him to wait to tell the Grand Jury what happened since he would testify the next day. UC44 did not testify at the firearm discharge hearing, give a formal statement to the District Attorney, or speak to Internal Affairs. He testified before the Grand Jury on June 9, 2009. For this “good shooting,” he was taken off undercover assignments for three months, but was not disciplined. He returned to undercover assignments, and rejoined the midnight field team in March 2011 (A.348, 357-58, 372, 430, 1426-29, 1451, 1457-58, 1534, 1630 [Urena:T.174, 183-84, 198, 255; UC44: T.1665-68, 1690, 1696-97, 1805, 1901]). The Codefendant’s Case16 Internal Affairs Deputy Inspector John McDermott testified by reading from a firearm discharge report. The report stated that on July 8, 2009, at around 12:20 a.m., an undercover officer approached a subject at East 167 Street and Grand Avenue, 16 The parties stipulated that CSU Det. Entemann and Det. Josh Rosenbaum, of OCCD Auto Crime, inspected the Jeep and found no additional “contraband, evidence or ballistics,” hidden compartments or traps (A.1880 [Defense Exhibit FF [Stipulation]: T.1917]). 22 engaged in a conversation to buy narcotics, and the subject directed him to a silver Jeep Liberty with a second subject in the driver’s seat. The undercover negotiated a price with the first subject and handed him money. That subject produced a gun from his waistband, causing the undercover to back away. The subject extended the firearm out the window and pointed at the undercover. The undercover fired one round striking the subject in the upper right arm. The Jeep drove westbound, and was forced to stop in front of 55 East 167 Street due to traffic, whereupon both subjects were apprehended. Officers recovered $30 of pre-recorded buy money from the second subject, and a replica .380 caliber semiautomatic from the Jeep’s passenger-side (A.1650, 1657-58, 1663-64, 1881 [McDermott: T.1920,1927-28,1933-34; Def. Exhibit X [report]: T.1926).17 The Verdict and Sentence On April 1, 2011, the petit jury convicted defendant of robbery in the second degree, petit larceny, menacing in the second degree, and possession of an imitation pistol. On July 19, 2011, the Bronx County Supreme Court (Mogulescu, J.), sentenced defendant to a determinate term of five years’ incarceration with five-years post- release supervision, concurrent with three concurrent definite terms of thirty days. 17 Insp. McDermott said the statements in the report could not be attributed to any particular officer, but could have come from any of the investigators who responded. He said no investigating officer would have spoken to UC44 prior to consulting with the prosecution on how it intends to proceed. Insp. McDermott also noted the failure to maintain a memo book (or activity log) could subject an officer to departmental discipline, and it is not procedure to take guidance from union representatives in deciding whether to prepare reports (A.1652-53, 1661-62, 1665 [McDermott: T.1922-23, 1931-32, 1935]). 23 That day, Bronx County Supreme Court (Mogulescu, J.), entered a stay of execution of sentence pending appeal and affixing bail. The Motion to Set Aside the Verdict In the interim, in papers dated May 11, 2011, defendant, through counsel, moved to set aside the verdict pursuant to CPL § 330.30(1) on the grounds that the trial court committed Bruton error in admitting Rushing’s grand jury testimony (A.1845-62). In papers dated May 31, 2011, the People filed an answer (A.1863-76). By decision dated June 22, 2011, the trial court denied the motion, holding that it “adheres to its previous determination that the non-testifying codefendant’s statement was properly admitted into evidence[.]” (A.1877). The Appeal By order dated December 16, 2014, a majority of the Appellate Division reversed defendant’s judgment of conviction “on the law,” and remanded for a new trial (A.3). After a brief recitation of Rushing’s grand jury testimony, it reasoned: The [trial] court found that the codefendant’s statement was not “facially incriminating as to [defendant]” because nothing in the statement suggested that defendant was involved in any illegal conduct. We disagree. Although the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was “facially incriminating” as to defendant within the meaning of Bruton. The codefendant’s narrative placed defendant with the codefendant throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct. Among other things, the statement recounted that, after defendant’s return to the codefendant’s car following an absence to “get food,” the alleged robbery victim (an undercover officer) appeared at the car 24 window, asked where the “stuff” was, and dropped prerecorded buy money (the property allegedly stolen in the charged robbery) into the car. This narrative suffices to create an inference that defendant, while outside the codefendant’s vehicle, had purported to set up a deal for a sale of contraband that was to culminate in the vehicle, but did not fulfill the deal once he entered the vehicle. . . . [H]ere, we cannot say that admission of the codefendant’s statement was harmless beyond a reasonable doubt, in view of the extensive references to defendant and the indications that defendant had purported to set up a drug deal with an individual whom he then led back to the car[.] As defendant points out, there were numerous inconsistencies, gaps, and allegedly problematic aspects of the People’s evidence that, although plausibly characterized as innocuous by the People, might have been relied upon to create reasonable doubt in a trial at which the codefendant’s statement was not part of the evidence. Further, and most significantly in our view, in this case in which the defense claimed that the police fabricated a story of a sham drug sale leading to a robbery in order to excuse the undercover officer’s improper shooting of defendant as the codefendant’s car pulled away, the codefendant’s statement was the only nonpolice evidence that the codefendant possessed the buy money when the car was stopped. We also note that defense counsel made a timely application for preclusion of the codefendant’s grand jury testimony, deletion of all references to defendant, or a severance.18 (A.6-8) (citation omitted). The opinion found it “unnecessary to reach defendant’s remaining arguments.” (A.9).19 18 As respondent before the Appellate Division, appellant did not dispute defendant’s position that this narrow issue was fully preserved as a matter of law (see Appellate Division Brief for Defendant-Appellant, at 34-35; Appellate Division Respondent’s Brief, at 25-33). 19 The “remaining arguments” the Appellate Division declined to reach include defendant’s challenges to: the prosecutor’s summation for allegedly “undo[ing] the effect of the limiting instructions by urging the jury to use [Rushing’s] confession in evaluating [defendant’s] case” (Appellate Division Brief for Defendant-Appellant, at 28-30); the trial court’s decision to permit two undercover officers to testify utilizing their undercover numbers (id., at 35-45); the trial court’s decision to permit testimony that a grand jury found Continued on next page… 25 Justice DeGrasse dissented. He “disagree[d] with the majority’s conclusion that the grand jury testimony of Rushing, defendant’s codefendant, who did not testify at trial, was facially incriminating as to defendant.” (A.10). After providing a similar recitation of Rushing’s grand jury testimony, the dissent reasoned: [R]ushing’s grand jury testimony was not facially incriminating because it did not implicate defendant in any of the conduct underlying his conviction under the robbery, petit larceny, imitation firearm, and menacing counts. Specifically, Rushing made no mention of any interaction between defendant and UC44 before the latter purportedly approached the Jeep and demanded the “stuff” before firing a shot. Rushing did not testify that defendant demanded or took possession of the buy money. Moreover, he asserted that he never saw a toy pistol. In sum, the bizarre encounter Rushing recounted in his grand jury testimony did not attribute any criminality to defendant. Defendant’s reliance on Rushing’s particular testimony that the $30 was in his pocket is misplaced. Defendant argues that he was directly implicated by this evidence. However, as noted, a statement that inculpates only when linked with other evidence is not facially incriminating[.] For this reason, I disagree with the majority’s position that Rushing’s grand jury testimony was facially incriminating insofar as it “suffice[d] to create an inference” and gave “indications” that defendant purported to set up a drug deal with UC44 while away from the vehicle and outside of Rushing’s presence. Such an inference does not arise from Rushing’s testimony alone. Here, the identity of the money as the proceeds of the robbery could not have been established by Rushing’s grand jury testimony alone. That link could only have been established through the testimony of the police witnesses. Even if Rushing’s grand jury testimony was erroneously admitted, the error was harmless beyond a reasonable doubt. I reach this conclusion on the basis of “two discrete factors: (1) the quantum and nature of the evidence against defendant if the error is excised and (2) the causal effect the error may nevertheless have had on the jury[.”] With regard to the first factor . . . I rely upon includes the recovery of the buy the undercover’s shooting justifiable (id. at 46-49); and the sentence imposed as unduly harsh and excessive (id., at 50-52). 26 money and the toy pistol, the respective proceeds and instrument of the robbery. In addition, it is undisputed that defendant was apprehended shortly after and near the scene of his crime. In short, the evidence of defendant’s guilt was generally overwhelming[.]* As to the second factor, I see no chance that the jury would have acquitted defendant but for Rushing’s grand jury testimony[.] . . . (A.15-17) (citations omitted). In a footnote, the dissent added: Although the majority finds it significant, defendant’s claim of a cover- up with respect to the shooting is a red herring. The shooting occurred after defendant committed the robbery, and the evidence of his guilt was unrefuted. The majority’s passing reference to unspecified “inconsistencies, gaps, and allegedly problematic aspects of the People's evidence” is equally unpersuasive. (A.17, n.1). On February 17, 2015, Justice DeGrasse issued a certificate granting leave to appeal to this Court from that decision (A.2). 27 ARGUMENT THE NISI PRIUS COURT’S ADMISSION OF THE CODEFENDANT’S GRAND JURY TESTIMONY, ADMITTING NO WRONGDOING TO THE CRIMES CHARGED FOR EITHER DEFENDANT, DID NOT VIOLATE DEFENDANT’S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSER. BRUTON V. UNITED STATES, 391 U.S. 123 (1968). A. The Codefendant’s Grand Jury Testimony Did Not Violate Defendant’s Right To A Fair Trial Because It Was Not Facially Incriminatory As To Him. Pursuant to Bruton v. United States, 391 U.S. 123 (1968), “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 207 (1987). This rule does not apply where “the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial.” Richardson, 481 U.S. at 208. At issue, here, is the question of whether the grand jury testimony of a jointly- tried codefendant that admitted no wrongdoing constituted a “facially incriminatory confession.” The majority opinion found that notwithstanding “codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing” for either jointly-tried defendant, that it could still be “facially incriminating as to defendant” because it “suffice[d] to create an inference” and gave “indications” that defendant purported to set up a drug deal. 28 (A.6-8). Yet, in so doing, the majority “linked” its analysis “with evidence introduced later at trial” detailing the robbery as the basis for its inferential conclusion. That analysis was in error. By comparison, the dissenting justice, rightfully, disagreed. He found—just as the experienced trial justice determined below (A.94-96)—that any inculpatory “inference does not arise from [codefendant’s] testimony alone,” but required “the testimony of the police witnesses” introduced at trial to incriminate defendant (A.16). As such, the rule set forth in Bruton did not apply, and the jury was presumed to follow the instruction that this grand jury testimony was admissible as to codefendant Rushing alone.20 The majority opinion also expanded the scope of Bruton beyond its rationale. Bruton, by its express terms, applies to “facially incriminating confession[s]” (or, at most, equally “powerfully incriminating extrajudicial statements of a codefendant”). Bruton, 391 U.S. at 135; People v. Jackson, 22 N.Y.2d 446, 451 (1968). That is because some statements (particularly nontestifying codefendant’s confessions that “point the accusatory finger” at the defendant in a joint trial) are so powerful, that the “practical and human limitations of the jury system cannot be ignored.” Bruton, 391 20 The trial court issued limiting instructions before and after the testimony, in its final charge, and in response to a jury note requesting to rehear that testimony, that this testimony was admissible only as to Rushing, could not be considered “in any way” as to defendant, and must be “completely disregard[ed]” as to defendant (A.171-80 [T.1306-07, 1340-41, 2119-20, 2182]). There was no challenge to the instruction as insufficient at trial (A.133 [T.1305]), and there is no issue on appeal regarding the sufficiency of this charge. 29 U.S. at 135-36. Yet, here, the majority opinion invoked Bruton for a statement that, by its analysis, was intended to provide both the defendants a complete defense to the crimes charged. (A.6). And, while it found the testimony “creat[ed] an inference” and gave “indications” that defendant purported to set up a drug deal, (A.7-8), that flawed analysis simply failed to address the question of whether Bruton applies to such inferential, non-accusatory incrimination. Cf. Marsh, 481 U.S. at 208 (“Specific testimony that ‘the defendant helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind”). Put simply, Rushing’s narrative did not require the jury to perform the overwhelming task—or, as the Supreme Court has called it, “[M]ental gymnastics,” Frazier v. Cupp, 394 U.S. 731, 735 (1969)—of removing a confession (or equally powerful statement) that directly implicates the defendant from their minds. Thus, Bruton did not apply because the jury could be expected to follow the requisite limiting instruction to “completely disregard” the statement in its deliberations as to defendant’s guilt. “[I]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” U.S. Const. amend. VI. That right, made applicable to the States through the Fourteenth Amendment, and exclusively at issue here, includes “the right of cross-examination.” Bruton, 391 U.S. at 126, quoting Pointer v. Texas, 380 U.S. 400, 404 (1965). A prior statement of a codefendant, who does not take the stand, that is “introduced at a joint trial is not considered to be . . . ‘against’ a defendant if the jury 30 is instructed to consider that testimony only against a codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).21 Underpinning that rule is the most fundamental of legal principles; to wit, “Unless [the courts] proceed on the basis that the jury will follow the court’s instructions where [they] are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense.” Bruton, 391 U.S. at 135, quoting Delli Paoli v. United States, 352 U.S. 232, 242 (1957); accord People v. Morris, 21 N.Y.3d 588, 598 (2013); People v. Davis, 58 N.Y.2d 1102, 1104 (1983). Yet, the Bruton Court crafted a “very narrow exception” to this “almost invariable assumption.” Marsh, 481 U.S. at 206 (emphasis added). In Bruton, the Supreme Court held, “[A] defendant is deprived of his . . . right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial,” even with such a limiting instruction. Id. at 207; Bruton, 391 U.S. at 135. There, the codefendant had orally confessed before trial that he and defendant committed the robbery together. Bruton, 391 U.S. at 124. In finding the use of a limiting instruction insufficient in that context, the Court relied 21 Crawford “establishes that the Confrontation Clause generally prohibits the use of ‘testimonial’ hearsay against a defendant in a criminal case, even if the hearsay is reliable, unless the defendant has a chance to cross-examine the out-of-court declarant.” People v. Goldstein, 6 N.Y.3d 119, 127 (2005); see Crawford v. Washington, 541 U.S. 36, 59 (2004). There is no question “grand jury” testimony is “testimonial.” Crawford, 541 U.S. at 68. However, nothing in Crawford altered the principle that such testimony is “not considered to be . . . ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.” Marsh, 481 U.S. at 206; Cruz v. New York, 481 U.S. 186, 190 (1987)(same); see People v. Pagan, 87 A.D.3d 1181, 1183 (3d Dept. 2011); United States v. Lung Fong Chen, 393 F.3d 139, 150 (2d Cir. 2004). 31 on an unrelated case, Jackson v. Denno, that had repudiated “the proposition that a jury, when determining the confessor’s guilt, could be relied on to ignore his [own] confession of guilt should it find the confession involuntary.” Id., citing Jackson, 378 U.S. 368, 388-89 (1964). The Court reasoned: [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Id. at 135-36;22 cf. People v. Wheatman, 31 N.Y.2d 12, 20, 24 (1972) (“Bruton does not apply to a case in which the challenged statement . . . does not incriminate any of the declarant’s codefendants”). In Marsh, the Court further “limited” the already narrow scope of Bruton. Gray v. Maryland, 523 U.S. 185, 189 (1998). There, at a murder trial, the State redacted the confession of the jointly-tried codefendant to “omit all reference” to defendant. Marsh, 481 U.S. at 203. As redacted, the confession indicated that the 22 Earlier in its opinion, the Court explained the issue thusly: “In joint trials[,] when the admissible confession of one defendant inculpates another defendant, the confession is never deleted from the case and the jury is expected to perform the overwhelming task of considering it in determining the guilt or innocence of the declarant and then of ignoring it in determining the guilt or innocence of any codefendants of the declarant. A jury cannot ‘segregate evidence into separate intellectual boxes.’ . . . It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.” Bruton, 391 U.S. at 131. This explication summarizes the concept of “mental gymnastic[s].” Id. at 132 n.8; Frazier, 394 U.S. at 735. 32 codefendant and a third person had discussed their intention to commit murder in the front seat of the car while traveling to the victim’s house, and that detailed the commission of the crime. Id. at 203-04. At trial, evidence was adduced that corroborated in detail the crimes described in the statement, and that established defendant sat in the back seat (id. at 204), allowing the jury to infer defendant knew about the crime in advance. The Court found that the redacted confession fell outside the scope of Bruton, and remained admissible with appropriate limiting instructions at their joint trial. It held that Bruton does not apply when the “confession [is] not incriminating on its face, and bec[omes] so only when linked with evidence introduced later at trial.” Marsh, 481 U.S. at 208. The Court distinguished Bruton stating that, there, the “codefendant’s confession ‘expressly implicat[ed]’ the defendant as his accomplice.” Id. Consequently, once introduced, “[t]here was not the slightest doubt that it would prove ‘powerfully incriminating.’” Id., quoting Bruton, 391 U.S. at 135. By contrast, it explained: Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that ‘the defendant helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for 33 the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton’s exception to the general rule. Id. at 208;23 See United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989) (a “defendant’s Bruton rights [are] violated ... only if the statement, standing alone, would clearly inculpate him without introduction of further independent evidence”), quoting United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir. 1985). (The same day, the Court decided Cruz v. New York, wherein it held, “[T]he Confrontation Clause bars [the] admission [of a nontestifying codefendant’s confession incriminating the defendant] at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own [interlocking] confession is admitted against him.” Cruz, 481 U.S. at 193; see People v. Eastman, 85 N.Y.2d 265, 273-74 [1995]. That principle is not at issue here.) Most recently, in Gray, the Court addressed whether Bruton applies to a codefendant’s “confession” that “referred to” and “directly implicated” defendant where the State, prior to its introduction, “replaced the [] defendant’s name” with “an obvious indication of deletion, such as a blank space, the word ‘deleted’ or a similar 23 The Court also noted that, as a practical matter, “it is not [] possible to predict the admissibility of a confession [incriminating by connection] in advance of trial.” Marsh, 481 U.S. at 209. In so doing, it rejected the “contextual implication” doctrine then in use many federal courts. Id. And, it thereby limited consideration of the incriminatory nature of such a statement to the “four-corners” of the statement itself. Cf. id. at 212 (Stevens, J., dissenting) (suggesting, as an alternative to the majority opinion, that trial courts can decide the admissibility of such a statement after the prosecution rests to determine its “potentially inculpatory effect” in light of the evidence presented to that point). 34 symbol.” Gray, 523 U.S. at 192. The Court found that such confessions, “considered as a class, so closely resemble Bruton’s unredacted statements that . . . the law must require the same result.” Id. It reasoned: The blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to [the codefendant’s] use of Bruton’s name or to a testifying codefendant’s accusatory finger. By way of contrast, the factual statement at issue in Richardson . . . differs from directly accusatory evidence in this respect, for it does not point directly to a defendant at all. Id. at 194; accord People v. Wheeler, 62 N.Y.2d 867, 868-69 (1984). The Court acknowledged that Richardson “placed outside the scope of Bruton’s rule those statements that incriminate inferentially.” Gray, 523 U.S. at 195. However, it found the “inferences” at issue facially incriminating because they arise from “statements that, despite redaction, obviously refer directly” to defendant “and involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” Id. at 196; accord Wheeler, 62 N.Y.2d at 869. Applying this precedent, no Bruton violation occurred here. Indeed, even the majority opinion below recognized, “[T]he codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing.” (A.6). That is because Rushing’s grand jury testimony was exculpatory (albeit partially false)—as the dissenting opinion observed, it “did not implicate defendant in any of the conduct underlying his conviction under the robbery, petit larceny, imitation firearm, and menacing counts.” (A.15). Indeed, if 35 introduced as the “first item [] at trial,” Gray, 523 U.S. at 196, it would have informed the jury that the defendants did nothing improper at all. See Pagan, 87 A.D.3d at 1185 (codefendant’s “statements did ‘not implicate defendant in any wrongdoing,’ and their admission at trial did not deprive defendant of her right to confront witnesses against her” [citation omitted]); People v. Johnson, 224 A.D.2d 635, 638 (2d Dept. 1996); People v. Paulino, 187 A.D.2d 736 (2d Dept. 1992). Rushing’s narrative, though describing a “bizarre encounter” with an unknown assailant (A.15), did not attribute any criminal activity to defendant whatsoever. Instead, the grand jury testimony described their relationship, and gave an innocuous version of the events of the evening at issue. According to Rushing, defendant and he drove around in Rushing’s girlfriend’s silver Jeep looking for defendant’s stolen Mustang. Around midnight, Rushing stopped the Jeep at East 167 Street to allow defendant, his passenger, to buy food. As Rushing “listen[ed] to the radio,” defendant exited the Jeep, “went in” (presumably) to a restaurant, “got food,” and returned to the Jeep. That is all. Rushing did not describe defendant interacting with anyone (A.140, 143, 159, 161-62 [T.1312, 1315, 1330, 1332-33]). Defendant then returned to the Jeep, alone. Sometime after reentering the Jeep, “someone came to the vehicle talking about where is the stuff and reaching money out” (A.140, 161 [T.1312,1332]). Defendant did not “say anything” to “the person standing at the window” or to Rushing (A.168-69 [T.1339-40]). In fact, defendant did not speak at all (A.169 [T.1340]). Rushing, feeling it was “time to 36 leave,” backed up the Jeep, and “pull[ed] off” (A.140 [T.1312]). As he drove off, he did not see what defendant was doing (A.162 [T.1333]). The “money dropped” into the Jeep (A.140 [T.1312]). Then, “bullets” started “flying,” the rear window “shattered,” and defendant said, “I am hit” (A.140-41, 161 [T.1312-13, 1332]). Rushing had never seen a toy firearm in the Jeep or in defendant’s hands (A.162, 164- 65 [T.1333,1335-36]). Rushing drove defendant to the hospital (A.161 [T.1332]). En route, he placed the dropped money (that happened to be prerecorded buy money) into his pocket, saying he was “nervous” and “scared” and did not know what else to do (A.165-66 [T.1336-37]). Then, after stopping at a red light, officers pulled Rushing from the Jeep (A.141, 161 [T.1313, 1332]). That facially exculpatory (albeit false) testimony did not implicate Rushing or defendant; nor did it attempt to shift the blame to defendant. Bruton does not apply to such a facially non-incriminatory statement. See Wheatman, 31 N.Y.2d at 20, 24 (“the challenged statement” that codefendant “had prepared five copies of bid estimates, instead of the three required,” “given the two extra copies to [one unindicted and one indicted defendant]” (identified by name), and then “lied to the grand jurors” about it, “does not incriminate” the coconspirators).24 It does not matter that, as the majority opinion below found, “codefendant’s 24 Bruton also does not apply to false exculpatory statements, which Rushing’s statement was. See United States v. Abramson, 54 F.Supp.2d 479, 480 (D.C.V.I. 1999), aff’d 263 F.3d 160 (3d Cir. 2001); United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir. 1995); United States v. Rubio, 709 F.2d 146, 148 (2d Cir. 1983); United States v. Brown, 551 F.2d 639, 647 (5th Cir. 1977), rev’d in part on other grounds upon reh’g 551 F.2d 639 (5th Cir. 1977). 37 narrative placed defendant with [him] throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct.” (A.7). In identifying defendant, Rushing’s testimony merely placed him at the scene, first obtaining dinner and then sitting in the front passenger seat of the Jeep. There is nothing facially incriminating about that. Moreover, defendant never contested his presence in the Jeep. Defendant (through counsel) conceded his identification by agreeing to the court’s request to issue a preliminary instruction that the undercover officer shot him (see footnote 3), and thus conceded his presence in the Jeep before the prosecutor decided “to use” the grand jury testimony against Rushing (A.24-26 [VD.61-63]).25 Then, in his opening remarks, defendant’s counsel informed the jury that the undercover “shot somebody [defendant] without reason” (A.255 [T.80]). He added, “[I]f [UC44] was shooting at somebody who was trying to rob you, you would shoot in their window, wouldn’t you? You wouldn’t shoot at the back passenger side window, would you?” (A.258 [T.83]). These statements placed defendant in the front passenger seat of the Jeep when he was shot. Given the defense theory placed defendant in the Jeep, Rushing’s grand jury testimony cannot be considered inculpatory for doing the same. Cf. Schneble v. Florida, 405 U.S. 427, 429-30 (1972) (codefendant’s “confession” violated 25 Only moments before the defense concession, the prosecutor said, “I haven’t decided” whether to utilize that testimony (A.22; VD.3). Thus, defendant cannot claim that the prosecutor’s decision to introduce the grand jury testimony influenced his choice of defense placing him in the Jeep. 38 Bruton where it also accused defendant of “ha[ving] occupied the rear seat of the car,” “ha[ving] never left [codefendant] alone in the car with [the murder victim],” and of being “in the position in the car from which the victim could more easily have been strangled,” where defendant sought to allege “that [codefendant] had [murdered the victim] while [he] was away from the car”). To the extent the narrative “described defendant’s conduct” (A.7), it did no more than provide an innocuous account. The narrative established, at most, that defendant sat in the passenger seat as they searched for his stolen vehicle, and that he exited the Jeep to get food, entered a restaurant, bought food, and then returned to the Jeep. As it relates to defendant, it described nothing else. That explains why defendant’s counsel initially agreed to the admission of that account with unredacted references to his client (see footnote 4), because even he, presumably, believed the narrative did not adversely affect his client’s defense (it was not until counsel later found, at the end of the grand jury testimony, that Rushing had admitted to possessing the money that he objected to its introduction (A.54-55 [T.17-18]). It also explains why counsel expressed his intention to utilize Rushing’s testimony on summation “in favor of” his client (A.1689-91, 1695 [T.1987-89, 1993]), and then suggested in argument before the jury that UC44 “accosted” defendant, approaching him when he “was out there going to buy something to eat,” and that anyone, including his client, would “try to get away from [UC44]” at that point and return to the Jeep (A.1738-39 [T.2037-38]). In sum, the only references to defendant’s actions 39 contained in Rushing’s narrative exculpated him, and fit within the defense theory. So, Bruton does not apply. Notably, the testimony that defendant and Rushing had a “friendship” and a “relationship” was also not “facially incriminating.” Marsh, 481 U.S. at 208. Nothing about such a relationship establishes an intent to act together in a criminal fashion; i.e., it cannot establish they “acted in concert.” See People v. Nussbaum, 142 A.D.2d 739, 740 (2d Dept. 1988) (defendants being “close personal friends” insufficient to establish acting-in-concert theory). And, even when linked with other evidence at trial, it did not bolster the People’s case. Indeed, the jury acquitted Rushing of robbery. Finally, without trial evidence, Rushing’s admission to placing the $30 of buy money in his pocket was also non-inculpatory. Rushing testified that a man approached the car “with money in his hand,” and when Rushing drove off, the money “dropped” into the Jeep as someone started shooting at him (A.140, 161 [T.1312, 1332]). Rushing and defendant, then, had no conversations about that money, nor did either of them take it. When asked, “[W]hen you were arrested, you had $30 prerecorded buy money in your pants pocket, how did it get there?” Rushing replied (without acknowledging it was buy money), “He left it in the car.” Rushing further testified that he had “pulled off” when someone started “shooting,” and he got “scared” (A.165-66 [T.1336-37]). Rushing admitted he put the money in his pants pocket, because, “What am I supposed to do?” (A.166 [T.1337]). That testimony exculpated both defendants of robbery (Penal Law § 160.10[2]) and petit larceny 40 (Penal Law § 155.25), since it established that neither intended to steal or stole, forcibly or otherwise, the money. The exculpatory value of that testimony was apparent from codefendant counsel’s use of it on summation. Citing the grand jury testimony, counsel argued: [Defendant] gets in the car, [Rushing] is about to drive off when he sees some crazed guy come over with money in his hands saying, ‘Where’s the stuff?” . . . He realizes it’s not a place to be . . . He drives off . . . He tells you money was dropped in the car, he is not denying that . . . He’s admitting that the reason he drove away once the undercover [dropped the money] is because the cop started shooting. Anybody in their right mind, once somebody starts shooting at you, is going to drive away. What else are you going to do[?] . . . That he has this money in his car is of no consequence whatsoever[.] (A.1732-33 [T.2031-32]; see A.1706, 1735 [T.2005, 2034] [same]). That codefendant’s counsel supplied a defense to the charges of robbery and petit larceny based solely on his client’s grand jury testimony establishes it could not have been facially incriminatory as to either defendant under an acting-in-concert theory. Further, any incriminating link to defendant could only have been established through the trial testimony of police witnesses, and only if the jury disregarded the court’s limiting instructions. Cf. Marsh, 481 U.S. at 208 n.3 (Bruton analysis “premise[d]” on the assumption that codefendant’s confession “incriminated” defendant [though not facially], and she “would have been harmed” by it “if the jury had disobeyed its instructions”). As stated, the prosecutor intended to rely on this grand jury testimony to corroborate the testimony of UC44 and so incriminate Rushing further. She sought to utilize Rushing’s admissions that an individual (who 41 trial testimony established was an undercover officer), “approach[ed] the car and [said], ‘Where’s the stuff,’” that the “back window of his vehicle was shot out” (by that undercover officer, according to trial testimony) as Rushing drove off, and that Rushing “had the prerecorded buy money” (the proceeds of the robbery, according to trial testimony) in his pocket upon his arrest (A.96 [T.57]). Yet, as reflected by the parentheticals (that, notably, are also found in the majority opinion below [A.7]), the incriminating nature of even these admissions require linkage to the trial testimony of police witnesses. Otherwise, any number of innocuous explanations exist for what had happened, including that an undercover officer attempting to purchase narcotics may have accidentally approached the wrong individuals or vehicle. As in Marsh, with the need for trial testimony to inferentially incriminate defendant, “the judge’s instruction” is presumed to be “successful in dissuading the jury from entering onto the path of inference in the first place.” Marsh, 481 U.S. at 208. The majority opinion also erred in finding that Rushing’s grand jury testimony “create[d] an inference” or give “indications” that defendant purported to set up a drug deal while away from the Jeep (A.7-8). It did the opposite. The majority rested its conclusion on a mistaken recitation of Rushing’s grand jury testimony when it recounted that “codefendant claimed not to be paying much attention until defendant got back into the car” (A.5). That fact allowed them to infer that defendant could have set up a deal outside the Jeep. Yet, Rushing, while admitting that he listened to the radio with the engine running, described precisely what defendant did (from, it 42 appears, personal observation) after exiting the Jeep, saying he “went in” (presumably) to a restaurant, “got food,” and returned to the Jeep, alone (A.140, 143, 159, 161-62 [T.1312, 1315, 1330, 1332-33]). Accordingly, the jury would have had to reject Rushing’s testimony on this point as false to reach the inference drawn by the majority below. Yet, even if the “narrative suffices to create an inference” of illegal conduct, (A.7), the grand jury testimony, at most, created such an inference as to codefendant, the driver of the Jeep, and not defendant. As stated, the prosecutor intended to rely on this grand jury testimony to incriminate Rushing, and his admissions, at most, inferentially incriminated Rushing alone. Rushing’s testimony exonerated defendant by disclaiming that he had any interactions with anyone else (except to purchase food) outside or inside the Jeep. By comparison, Rushing admitted that, after seeing a man approach, and hearing the man ask, “Where’s the stuff?” he took the man’s $30 (in prerecorded buy money) and placed it into his pocket. That testimony, at most, created an inference that Rushing had seen an opportunity to steal money, taken money from an undercover officer, and driven off with it. Indeed, Rushing even admitted to having been “involved in situations like that” before (A.161 [T.1332]), strengthening the inference against him alone. Cf. People v. Kyser, 26 A.D.3d 839, 840 (4th Dept. 2006) (“statement of the codefendant that he possessed the marihuana found in the vehicle but defendant possessed the cocaine” violated Bruton). 43 With that inference, defendant simply could not be found liable as an accessory to Rushing’s actions. As the passenger in the Jeep, defendant was merely present. He had no interactions with anyone else. And, any illegality cannot be attributed to him for just sitting there. See People v. Yarrell, 146 A.D.2d 819, 821-22 (2d Dept. 1989) (Brown, J., dissenting) (“mere presence at the scene [as a vehicle passenger] at the time of the shootout is not sufficient to establish his guilt” on “a theory of accomplice liability”), rev’d for reasons stated by dissent 75 N.Y.2d 828 (1990); People v. Tucker, 72 N.Y.2d 849, 850 (1988) (“mere presence” in rear seat of car, “without more,” insufficient where no evidence “he had participated in planning the robbery; that he had been aware of the criminal enterprise when he entered the car; that he had in any way assisted the perpetrators; or that he had shared in the fruits of the crime”). Since Rushing’s testimony did not shift responsibility to defendant, there was “little danger that [the] jury . . . in weighing the evidence against [defendant], [would] consider against [defendant] an admission by [Rushing] concerning only [Rushing’s] activities.” United States v. Belle, 593 U.S. 487, 495 (3d Cir. 1979); cf. Bruton, 391 U.S. at 131 (jury “cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.”) Even assuming, arguendo, that this Court agrees with the majority opinion below that Rushing’s testimony “suffice[d] to create an inference” and gave “indications” that defendant purported to set up a drug deal (A.7-8), Bruton still 44 should not apply. Initially, every Supreme Court case addressing a Bruton issue involved a facially-incriminating confession that was equivalent to trial testimony of a codefendant taking the stand and pointing the “accusatory finger” at defendant. See Gray, 523 U.S. at 188, 194 (confession to participating with others, identifiable as including defendant); Cruz, 481 U.S. at 188-89 (confession to robbery with defendant and others); Parker v. Randolph, 442 U.S. 62, 66 (1979) (jointly-tried defendants confessed, implicating each other); Schneble, 405 U.S. at 429-30 (codefendant’s “confession” incriminated defendant in murder); Harrington v. California, 395 U.S. 250, 253-54 (1969) (codefendants’ confessed and incriminated defendant, the “white guy,” as participant in robbery-homicide); Bruton, 391 U.S. at 124 (“confession” that codefendant and defendant “committed the armed robbery”); cf. Tennessee v. Street, 471 U.S. 409, 415-16 (1985) (approving introduction as rebuttal evidence the separately-tried accomplice’s confession incriminating defendant as active participant in murder, where not introduced for its truth). The rationale for these decisions rests on the fact that the credibility of a co-defendant’s confession is “inevitably suspect” given the declarant’s clear “motivation to shift blame onto others,” and that such unreliability is “intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by cross-examination.” Bruton, 391 U.S. at 136. There is even support for the proposition that Bruton is limited to such confessions. See United States v. Hopkins, 77 F.3d 493 (10th Cir. 1996) (“Arguments in favor of extending [Bruton’s] application to codefendant statements of admission have been 45 rejected”); United States v. Locklear, 24 F.3d 641, 646 (4th Cir. 1994) (Bruton limited under Marsh to cases involving “facially incriminating confessions”); Vincent v. Parke, 942 F.2d 989, 990 (6th Cir. 1991) (Bruton inapplicable when non-testifying codefendant’s statement not confession). That did not happen here. Further, as Bruton recognized, “not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions.” 391 U.S. at 135. Here, as discussed, Rushing’s “grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing” for either defendant (A.6). That fact should remove this case from the scope of Bruton. See United States v. Muhammad, 498 Fed.Appx. 251, 252 (4th Cir. 2012) (since “statement tends to exculpate, rather than inculpate . . . it actually does not create a Bruton problem”); United States v. Curry, 977 F.2d 1042, 1056-57 (7th Cir. 1992); United States v. Davis, 418 F.2d 59, 63 (9th Cir. 1969) (Bruton not applicable to codefendant’s prior testimony that “attempt[s] to exonerate both defendant and himself”); cf. Vincent, 942 F.2d at 991 (no Bruton violation where statement was “simply not an admission of guilt,” nor “an attempt to shift blame onto others”). Further, the concerns expressed in Bruton do not exist here. There, the Court emphasized the concern that a jury would not normally act on the presumption that a codefendant’s “credibility is inevitably suspect,” without the benefit of cross- examination. See Bruton, 391 U.S. at 136. Yet, where, as here, Rushing’s testimony 46 was so clearly at odds with the testimony of the undercover officer (as well as the responding officers who arrested defendant and recovered the imitation pistol and buy money), that it is reasonably likely that the jury was aware of its unreliability, and thus listened to the court’s instruction to disregard the statement as to defendant. Further, the theory underpinning the “very narrow exception” to the principle that jurors are presumed to follow limiting instructions is that certain statements are so powerfully incriminating and prejudicial “that limiting instructions cannot work.” Gray, 523 U.S. at 192; see Bruton, 391 U.S. at 135–136. Hence, Bruton emphasized that the principle applies to those statements that add “substantial, perhaps even critical, weight to the Government’s case.” 391 U.S. at 128; accord Cruz, 491 U.S. at 191-92 (“‘devastating’ practical effect . . . was one of the justifications for excepting from the general rule the entire category of codefendant confessions that implicate the defendant in the crime”). In finding the statement created no more than an “inference” and gave “indications” of defendant’s guilt, the majority opinion erred in failing to determine whether that is the equivalent of “[s]pecific testimony that ‘the defendant helped me commit the crime’ . . . which a jury would find “more difficult to thrust out of mind.” Marsh, 481 U.S. at 208. It is not. Further, as will be discussed, the evidence against defendant was beyond overwhelming—it included the mutually corroborating testimony of six witnesses as well as the recovery of the weapon used and proceeds of the robbery. It can hardly be said that Rushing’s statement, even if it gave such “indications,” formed such a vital part of the People’s case that that it was 47 bound to have a devastating effect on the minds of the jurors incurable by appropriate cautionary instructions. Accordingly, Bruton should not apply because the jury could be expected to follow the requisite limiting instruction to “completely disregard” the statement in its deliberations as to defendant’s guilt. See United States v. Lopez- Lopez, 282 F.3d 1, 13 (1st Cir. 2002) (argument that the statement was of an “incriminatory nature” is insufficient to clear the hurdle requiring a powerfully incriminating statement); Nelson v. Follette, 430 F.2d 1055, 1058-59 (2d Cir. 1970). In sum, regardless of how Rushing’s grand jury testimony is viewed, it falls outside the “very narrow” scope of Bruton and its progeny. B. Any Error By The Nisi Prius Court In Allowing The Admission Of The Codefendant's Grand Jury Testimony Was Harmless Beyond A Reasonable Doubt. The evidence of defendant’s guilt—including UC44’s testimony, the corroborating testimonies of five law enforcement officers, defendant’s admission to his presence at the scene (and that the undercover officer shot him), the bullet wound he suffered, the defendants’ seizure within seconds of the crime a few blocks down the street, and the recovery, by other officers, of the imitation pistol with defendant’s blood as well as stolen pre-recorded buy money—was beyond overwhelming. The defense of a law enforcement cover up for a “bad shooting” involving, at least, those six police officers if not more—a defense, notably, that defendant’s counsel chose before the prosecutor stated her intention to introduce the codefendant’s statement— was a “red herring,” as the dissenting justice below so aptly observed (A.17, n.1). 48 There was also no reasonable possibility codefendant’s grand jury testimony contributed to the jury’s finding of defendant’s guilt. As stated, Rushing did not testify in the grand jury to a robbery committed in his presence. If credited, his testimony contradicted the undercover’s testimony in all relevant respects. In point of fact, without Rushing’s grand jury testimony, defendant would have had no competing testimony on which to base his argument that the police narrative of the crime should not be believed.26 Put another way, without Rushing’s testimony, the defense was non-existent. Finally, it introduced nothing new or incriminating that had not already been presented through the mutually corroborative testimonies of the prosecution’s witnesses. Combined, then, with the overwhelming evidence of guilt, there is no reasonable possibility the jury’s deliberations as to defendant were tainted by the receipt of Rushing’s grand jury testimony. “Constitutional error may be harmless only if it is harmless beyond a reasonable doubt, that is, there is no reasonable possibility that the error might have contributed to defendant’s conviction.” People v. Hamlin, 71 N.Y.2d 750, 756 (1988), citing Schneble, 405 U.S. at 431; see People v. Smith, 97 N.Y.2d 324, 330 (2002). In a Bruton harmless error inquiry “the court must determine . . . the probable impact of 26 Defendant’s objection to the admission of this statement and motion for severance is more a reflection of a school of litigation epitomized by the song “Whatever it is, I’m against it” (from the Marx Bros. film, “Horse Feathers” [1932]), than a reflection of a reasoned decision that it hampered his defense. Indeed, the experienced trial judge astutely recognized it as such when he told defendant’s counsel that he was “hard pressed under [the] circumstances [to understand] what the argument would be as to why the undercover shot anybody if there was no issue as to buy money” (A.59 [T.21]). 49 the codefendant’s admissions on the ‘minds of an average jury’ and whether they were sufficiently prejudicial to defendant to require reversal.” Hamlin, 71 N.Y.2d at 758, citing Harrington v. California, 395 U.S. at 254; see Eastman, 85 N.Y.2d at 276. Here, the evidence of defendant’s guilt was beyond overwhelming. There was no issue of identification at trial. Defendant conceded his presence in the passenger seat of the Jeep, the getaway vehicle, when his attorney agreed with the court’s suggestion, at the start of jury selection, to instruct prospective jurors that UC44 had shot him (A.181 [VD.13]; see A.183-84, 189 [VD.23, 342] [court instructed, “there will be evidence that . . . (defendant) was shot by the undercover”]). In his opening statement, defendant’s counsel went further, arguing that UC44 “shot somebody without reason” as his vehicle was “taking off,” naming that somebody as his client, “Keith,” and acknowledging his client’s presence with Rushing in “the Jeep” when it was “stopped” (A.255-258 [T.80-83]). That concession resulted in no identification instruction in the final charge (A.1684-85 [T.1974-75]). It was also unsurprising. After the gunshot, Det. Baldwin never lost sight of the Jeep (A.671 [T.497]), which was stopped in a matter of seconds after driving a few blocks west on East 167 Street; on stopping the Jeep (A.291-92, 453, 994-96 [T.117-18, 278, 840-42]), Sgt. Urena found defendant had been shot (A.293 [T.119]); and, UC44 unequivocally confirmed his identification of defendant thereafter (A.1422-23 [T.1661-62]). Defendant’s concession left the jury with only one inquiry: whether a gunpoint theft, as UC44 had testified, or something else, had caused UC44 to shoot defendant. 50 The People’s evidence conclusively established UC44’s explanation as the only reasonable or even plausible cause. Cf. People v. Drew, 160 A.D.2d 1100, 1103-04 (3d Dept. 1990) (posture of the case “distilled to a single issue,” and “[i]n view of positions taken by the parties” there was “no reasonable possibility” admission of codefendant’s statement contributed to conviction). UC44 compellingly testified that defendant and Rushing had robbed him.27 He recounted how, while trying to buy narcotics, he approached defendant who appeared to UC44 to be dealing. Defendant and UC44 engaged in a narcotics-related conversation; he assuaged defendant’s fear that he might be a “cop,” and defendant agreed to sell narcotics to him. Defendant led him to a Jeep, and entered the front passenger seat. From there, Rushing, the Jeep’s driver, asked to count the money as defendant reached into his waistband; a common place dealers hide narcotics. UC44 leaned over defendant and handed Rushing $30 in pre-recorded buy money. Instead of handing over narcotics, defendant pulled out of his waistband and aimed what appeared to be a Walther PPK at UC44. UC44 signaled distress, yelling, “Gun,” as he backed out of the Jeep and moved out of the gun’s path. The jeep accelerated as defendant, twisting his body toward UC44, aimed the pistol at UC44. UC44, now fearing defendant intended to shoot him, pulled his own firearm and fired once, 27 Though UC44 testified under his undercover number, the defense successfully located testimony from his prior case(s), and utilized that information to cross-examine him (A.1580-83 [T.1851-54]). 51 striking the rear-passenger window (A.1408-16 [T.1647-55]). UC44’s testimony had strong corroboration from the “eyes,” Det. Rivera and UC110, and “ears,” Sgt. Urena and Det. Baldwin, of his field team. Det. Rivera and UC110 saw UC44 approach defendant, who was loitering just as UC44 had described (A.523-24, 1275-77, 1404, 1407 [T.350-51, 1204-06, 1643, 1646). Over the Kel receiver, Sgt. Urena heard defendant agree to sell UC44 crack-cocaine (saying, “I could get that,” asking if UC44 was a “cop,” and telling UC44 to follow him [A.289, 435-36 [T.115, 260-61]). Given that defendant had no narcotics to sell, Sgt. Urena’s testimony independently established defendant’s intent to rob UC44. His intent was further circumstantially established by his prior behavior, as described by UC44, UC110, and Det. Rivera, of loitering after midnight in bad weather across from an open check cashing business. He was, apparently, looking for a target to rob. Sgt. Urena, UC110 and Det. Rivera also heard UC44 signal his distress at being robbed at gunpoint. They all heard UC44 yell “Gun,” which, to them, meant the “seller” had threatened UC44 with a firearm (A.291, 530, 1275 [T.117, 357, 1204]). That occurred, according to Det. Rivera, just prior to the Jeep accelerating away (A.530-31 [T.357-58]), and, according to everyone, prior to the gunshot (A.291, 578, 1275 [T.117, 405, 1204]). Put simply, UC44 would not endanger his life by breaking “character,” and calling out for assistance had defendant not brandished a gun. Indeed, UC44’s outburst caused the entire field team to break cover and converge on their location, thereby risking the exposure of other members of his field team, 52 including UC110 (A.291 [T.117]). Yet, the strongest corroboration came from the physical evidence that proved, beyond any doubt, that defendant had robbed UC44 at gunpoint, causing UC44 to shoot defendant. Det. Alston recovered the pre-recorded buy money from Rushing’s pants pocket (A.1000 [T.846]), establishing the theft took place. With no narcotics in the Jeep, there is no other reasonable explanation for the undercover officer’s loss of funds. And, Sgt. Urena, Lt. Rodriguez, Det. Rivera, and Det. Baldwin all saw the imitation Walther PPK, untouched, where defendant had been seated—coated in defendant’s blood—conclusively establishing the theft by what appeared to be a pistol (A.329, 548, 678-79, 778-79, 1084, 1140 [T.155, 375, 504-05, 603-04, 945, 1071]). Yet, even more evidence substantiated UC44’s testimony. The firearm’s location when recovered, lying just beneath the passenger window (see A.1878-79 [People’s Exhibit 7]), supports UC44’s testimony that defendant had extended the pistol partially out the window as UC44 shot him in the arm (A.1410, 1416, 1418, 1519-20 [T.1649, 1655, 1657, 1758-59]). On being shot, defendant would have dropped the pistol there. Further, the bullet travelled through the rear passenger window and side of defendant’s shoulder, as reflected in the location of the bullet hole in defendant’s shirt, which the jury was able to observe. For that to happen, defendant’s right upper arm had to be turned in order to expose it to a bullet coming from that direction. This physical evidence fully corroborated UC44’s testimony that defendant had turned toward him with a pistol in hand as the Jeep accelerated away, 53 causing UC44 to fire. In sum, “the case against [defendant] was so overwhelming,” that any Bruton violation “was harmless beyond a reasonable doubt.” Harrington, 395 U.S. at 253-54 (overwhelming proof of defendant’s participation in attempted robbery, felony murder consisted of defendant placing himself at scene, two identification witnesses [who had initially told police the perpetrators were Black when defendant was White], and [self-serving] in-court testimony of a codefendant, who placed blame for his possession of a gun on defendant). There was no plausible defense to this conclusive evidence of guilt. At trial, the only defense theory, which was presented as early as jury selection, through opening statement, and continued through summation, required the jury to find Sgt. Urena had led a conspiracy involving a substantial number of law enforcement officers, including at least a half-dozen officers from Bronx Narcotics as well as officers from the 44th Precinct, to “cover up” a “bad” shooting by UC44 through “perjury” about a sham drug sale, and the planting of an imitation firearm (A.192-222, 252-259, 1737-47 [VD.138-43, 256-60, 306-09, 406-12; T.80-83, 2038-46]). That defense made no sense. The defense simply failed to provide a credible reason for why UC44 would draw his weapon and fire at defendant if not in response to a firearm drawn on him. Below, the defense argued that UC44 wanted to “take down these two guys himself.” So, he drew his firearm and it “accidentally” discharged (A.1741, 1745-46 [T.2040, 2044-45] [defense summation]). The trial prosecutor rightly argued that this defense was “ridiculous” (A.1784 [T.2083]). Undercover officers do not make arrests (A.1396 54 [T.1635]), since that would forfeit their undercover status. Rather, that job is for the field team. Further, there is no penalty for losing buy money (A.458-59, 621-22, 1392- 93 [T.283-84, 447-48, 1631-32]), so UC44 had no reason for concern. Cf. People v. Smith, 2 N.Y.3d 8, 13 (2004) (arresting officer testified “the failure to locate prerecorded buy money following a transaction is ‘not uncommon’”). Also, UC44 would not have drawn his firearm unless in danger, since that, too, would reveal his identity. Indeed, in six years with over five-hundred undercover narcotics purchases, UC44 had never brandished or fired his firearm before (A.1391, 1396, 1429-30, 1447, 1542-43, 1609 [T.1630, 1635, 1668-69, 1686, 1819-20, 1880). It also makes no sense that he “accidentally” discharged it. The trigger pull on police-issued firearms is increased to prevent such accidents (A.846, 1401-02 [T.675, 1640-41]). The defense also required the jury to believe more than six law enforcement officers conspired to plant evidence and commit perjury on behalf of UC44, whom they did not know. Or, as defense counsel argued from jury selection through summation, that all these officers are part of a “brotherhood of blue,” and so should not be credited for that reason alone (A.1744 [T.2043]; see A.210-13, 215-20 [VD.306-09, 407-12]). Yet, that allegation was and remains facially incredible. Perhaps an argument that one officer planted a firearm could sway a jury, perhaps even that the officer had a partner who assisted him, but no “average,” rational juror would believe law enforcement officers from a narcotics field unit and a completely separate precinct command would conspire to plant a firearm and then cover up a shooting, 55 even if that shooting was improper. That argument was and remains fantastical. The defense is even more ridiculous given UC44’s lack of relationship with the other officers involved. UC44 had joined the midnight field team only one night earlier; he had no friendship or close association with any team member. There was no reason, then, that Sgt. Urena, Det. Rivera, Det. Baldwin, and UC110, would risk their careers to cover up for UC44.28 And, defendant did not even attempt to refute their lack of association in presenting this defense. The defense also called on the jury to entirely ignore the testimony of Lt. Rodriguez of the 44th Precinct, who, along with other officers, happened to be loitering near a Dunkin Donuts next to where the Jeep stopped in traffic. Lt. Rodriguez and his team had no association whatsoever with the narcotics officers and no reason to lie for them (A.1133-34, 1143 [T.1064-65, 1074]). Yet, Lt. Rodriguez also saw the (supposedly planted) blood-covered pistol within “seconds” of defendant’s removal from the Jeep (A.1137, 1139 [T.1068, 1070]). In short, “defendant’s claim of a coverup with respect to the shooting [was] a red herring” (A.17, n.1). And, the majority opinion erred in simply ignoring this insurmountable problem with the defense theory. Of course, there was also no possibility Sgt. Urena planted the imitation pistol or destroyed evidence. Initially, the absence of latent fingerprints on the pistol does 28 That risk was real. There were numerous surveillance cameras, including an NYPD camera, around the shooting and apprehension locations (A.901-02, 1484-85 [T.738-39, 1723-24]). And while, by chance, none caught the interaction at the Jeep, the officers could not have known that at the time. 56 not support that claim, since the pistol was covered in defendant’s blood, and Det. Reinuer, who later examined the firearm, admitted he finds fingerprints only about one-third of the time (A.858 [T.691]). The jury would have to believe that Sgt. Urena, risking exposure to any number of blood-borne pathogens, smeared defendant’s blood on an imitation firearm (A.1742, 1746-47 [T.2041, 2045-46] [defense summation]), and then placed it in the Jeep (Sgt. Urena also would have had to first check the Jeep for any other firearm before planting one). The jury also would have to believe that a police officer, with ready access to live firearms, had, by chance, at his disposal that night an imitation firearm just for this purpose. And, again, the jury would have to ignore the testimony of Lt. Rodriguez, with no conceivable basis in the record to do so. Given this evidence, the majority opinion’s passing reference to unspecified “inconsistencies, gaps, and allegedly problematic aspects of the People’s evidence” to question the strength of the case against defendant is troubling. The court does not describe what, if anything, it found disconcerting. And, importantly, it improperly treats this case differently than intermediate appellate courts have treated similar cases. In cases involving undercover narcotics “buy and busts,” appellate courts have found overwhelming evidence with far less recovered than here. See, e.g., Smith, 2 N.Y.3d at 13 (overwhelming where no buy money recovered); People v. Hooper, 48 A.D.3d 292, 293 (1st Dept. 2008) (same); People v. Johnson, 300 A.D.2d 677, 677-78 (2d Dept. 2002) (same); cf. People v. Nguyen, 90 A.D.3d 1330, 1334-35 (3d Dept. 2011) 57 (overwhelming evidence notwithstanding alleged “discrepancies in the proof, e.g., the lack of any independent eyewitnesses [other than the purchasing undercover officer] to the transactions or fingerprint evidence”). And, in robberies or assaults involving civilian witnesses, the same courts have had no difficulty concluding that the evidence against the defendant was overwhelming (even though every case has “inconsistencies and gaps” in the evidence), based on the rationale that at least one witness was independent of or disinterested from the others. See, e.g., People v. Vega, 276 A.D.2d 349 (1st Dept. 2000) (ovewhelming evidence provided by the victim’s companions and a disinterested witness); People v. Williams, 165 A.D.2d 747, 748 (1st Dept. 1990); People v. Falu, 138 A.D.2d 510, 511 (2d Dept. 1988); People v. Mosley, 42 A.D.2d 1037, 1038 (4th Dept. 1973). Yet, somehow, here, with unaffiliated members of law enforcement involved (as stated, the narcotics field team had no prior relation to UC44, and Lt. Rodriguez, who saw the pistol and was there with a team of officers from the 44th precinct, had no association with the field team), the court appears to have applied a different standard based solely on their status as law enforcement officers. By treating law enforcement testimony differently than civilians, the majority erred. See generally People v. Allan, 192 A.D.2d 433, 435 (1st Dept. 1993) (“testimony of a police officer should be evaluated in the same way as that of any other witness”); accord People v. Freier, 228 A.D.2d 520 (2d Dept. 1996); CJI.2d[NY] [Credibility of Witnesses: Police Testimony]. Furthermore, the “problematic aspects” of the People’s evidence were, almost 58 without exception, issues that could be refuted with the simple application of common sense. For instance, the allegation presented at trial that Sgt. Urena had smashed the rear passenger window to destroy evidence cannot withstand scrutiny. Lt. Rodriguez, at the firearms discharge hearing, had testified that Det. Baldwin banged on the driver’s side window with a flashlight, and that Sgt. Urena broke the rear passenger window (A.1153 [T.1084]). At trial, he explained that he saw Sgt. Urena go to that side of the Jeep, heard glass crashing, and assumed “he had to have broken it if I did hear the glass break” (A.1154, 1170 [T.1085,1101]). In fact, he had heard the glass shattering while on the driver’s side, and so could not have seen Sgt. Urena’s actions (A.1138-39 [T.1069-70]). By contrast, Det. Baldwin admitted that when he banged on the driver’s side window, he heard glass shattering even though the window he struck did not break; ergo, he caused the glass to fall out to the bullet- damaged window (A.723-24 [T.548-49]), or the window broke of its own accord. Regardless, no reasonable juror would believe Sgt. Urena smashed the window in order to cover up the shooting, since breaking the window could not have prevented anyone from figuring out the bullet passed through there (and Sgt. Urena, an experienced law enforcement officer, would know that). The defense challenge to UC44’s failure to remain on the scene after the shooting for questioning or to write up reports, likewise, could not withstand scrutiny. Obviously, undercover officers would never be left or questioned at a crime scene (A.421 [Urena:T.246]), for fear it would blow their cover. Further, the reason UC44, 59 UC110, and Det. Rivera went to the hospital together was procedure; any officer involved in a shooting must be examined for “trauma,” and receive sobriety testing (A.296, 420-21, 535-36, 1161 [T.122, 245-26, 362-63, 1092]). And, Det. Rivera went with them so he could inform hospital personnel he was law enforcement, which they could not do (A.592-94 [T.419-21]). That they spoke en route about what had happened was to be expected. After returning from the hospital, UC44 did not fill out paperwork that morning because his union delegate told him to wait to tell the Grand Jury what happened, which, as expected, he did the next day (A.1426, 1429, 1451, 1630 [T.1665, 1668, 1690, 1901]). And, as defense witness Insp. John McDermott noted, no investigating officer would have spoken to UC44 in the interim anyway until they consulted with the District Attorney’s Office on how that Office intended to proceed (A.164 [T.1935]). Beyond these facts, it makes no sense that Det. Rivera and UC110 would then deny seeing what happen inside the Jeep (A.529, 575-76, 646, 1295, 1297 [T.356, 402-03, 472, 1224, 1226]), if they had conspired in order to assist UC44 in covering up his purported “mistake.” Indeed, the only “gap” in the evidence at all was the loss of memo books by UC110 and Det. Baldwin. The trial court issued an adverse inference due to their loss (A.1809-10 [T.2127-28]). Yet, as UC44 noted, narcotics memobooks never contain important details (A.1585 [T.1856]). That reality was reflected in all of the memobooks turned over and inquired about, none of which contained any details beyond noting the occurrence of a shooting incident (A.639, 962, 968, 1007-08, 1169 60 [T.465, 802, 808, 853-54, 1100]). Their loss was not enough to call defendant’s guilt into any doubt. There also was no “reasonable possibility” the jury would have acquitted defendant but for Rushing’s grand jury testimony. Rushing did not confess or even testify to a robbery committed in his presence. Cf. People v. Carmona, 82 N.Y.2d 603, 614 (1993) (where “erroneously admitted evidence involved a confession of guilt” “harmless error inquiry” requires “particular sensitivity to the fact that confessions are ‘probably the most probative and damaging evidence’ that can be introduced against a defendant” [citation omitted]). To the contrary, as the dissent correctly noted, by Rushing’s account (when considered in light of the trial testimony), defendant had purchased food and returned to the Jeep, had not spoken to UC44, who independently approached the Jeep, had taken no money from UC44, and had brandished no firearm before being shot by UC44. In other words, his testimony contradicted UC44’s testimony, and was consistent with the defense theory, as summarized by the majority opinion below, that “the police fabricated a story of a sham drug sale leading to a robbery in order to excuse the undercover officer’s improper shooting of defendant as the codefendant’s car pulled away” (A.8). Cf. People v. West, 72 N.Y.2d 941, 942 (1988) (given “strong evidence of guilt,” admission of “codefendant’s statement, consistent in all respects with defendant’s except that the codefendant claimed that he, not defendant, had remained a few feet away while the robbery and shooting occurred, was harmless”); People v. Hale, 136 61 A.D.2d 960 (4th Dept. 1988) (codefendant’s “statements, even to the extent they can be deemed to incriminate defendant, recite precisely the same exculpatory version related by defendant”). In fact, without Rushing’s grand jury testimony, defendant had no defense at all. As stated earlier, defendant’s counsel expressed his intention to utilize Rushing’s grand jury testimony on summation “in favor of” his client (A.1689-91, 1694-95 [T.1987-89, 1992-93]). As even counsel recognized, he had to do so in order to explain his presence at the scene. Based on Rushing’s grand jury testimony, he argued on summation to the jury that defendant was just a “man who had his car stolen” (A.1746 [T.2045]), that defendant “was out there going to buy something to eat” (A.1738, 1741 [T.2037, 2040]), that, once outside the Jeep, UC44 “accosted” defendant and that anyone in that situation would “try to get away from [UC44]” and return to the Jeep (A.1738-39 [T.2037-38]), and that after defendant was shot, Rushing sped off because he was “rushing” defendant “to the hospital” (A.1743 [T.2042]). Without Rushing’s grand jury testimony, then, counsel had no competing evidence from which to argue that UC44’s narrative should not be credited. And, had he not relied on that testimony, any arguments of an alternative theory (beyond mere speculation that he was framed) would have been subject to sustained objection. See People v. Ashwal, 39 N.Y.2d 105, 109 (1976) (“counsel, in summing up, must stay within ‘the four corners of the evidence’”); cf. People v. Williams, 58 A.D.2d 943, 944 (3d Dept. 1977) (“summation of the defense attorney was also to the same effect, 62 outlining his theory as to how the defendant was “framed”, without any evidence in support of that theory.”). Indeed, though not doing so expressly, defendant’s counsel also relied on Rushing’s grand jury testimony to support his argument that law enforcement had planted the firearm. Rushing’s grand jury testimony was the only evidence presented that contradicted the testimony of UC44 placing the imitation pistol in defendant’s hand, and of Sgt. Urena, Lt. Rodriguez, Det. Rivera, and Det. Baldwin placing the imitation pistol at defendant’s feet upon his arrest in the Jeep. So, codefendant’s counsel, arguing first on summation, utilized his client’s grand jury testimony to argue that law enforcement, “all blue,” had conspired together to cover up a bad shooting and planted the imitation firearm (A.1707, 1710, 1730, 1735 [T.2006, 2009, 2029, 2034]). Then, defendant’s counsel on summation presented the same defense theory of a cover up by the “brotherhood of blue,” and implied that they did the same thing (A.1744, 1747 [T.2043, 2046] [asking why CSU did not try to get fingerprints off the imitation pistol, or take measurements inside the Jeep, and suggesting reason is he knew something was “not Kosher”]).29 In other words, Rushing’s grand jury testimony was not just consistent with defendant’s defense, it formed the very basis for that defense. 29 Prior to summations, the prosecutor had made a motion in limine to preclude defendant’s counsel from arguing that law enforcement planted the imitation firearm based on defendant’s pre-trial admissions to a toy gun being in the Jeep. The court allowed defendant’s counsel only to argue that, as reflected in those admissions, it was a “little piece of junk,” rather than an imitation firearm (A.1696-1700 [T.1994-98]). 63 In light of that fact, perhaps the most significant error committed by the majority opinion below was its “most significant[]” reliance on the fact that Rushing’s “statement was the only nonpolice evidence that the codefendant possessed the buy money when the car was stopped” (A.8). Initially, the evidence that buy money was recovered from Rushing was, in itself, overwhelming. UC44 testified that he handed $30 in pre-recorded buy money to Rushing. Det. Alston testified that he found $30 cash in Rushing’s pocket, and that he handed that cash to Det. Baldwin who then confirmed it was the buy money he had marked (A. 675-76, 1000 [T.501-02, 846]). (There also was no possibility Det. Alston obtained that buy money from UC44, since, as the defense conceded at trial, UC44 was removed to the hospital). Further, with the defense concession that UC44 had shot defendant (A.181 [VD.13]), the trial court could not conceive of a defense argument that the money was not in their possession. It reasoned, wisely, “I am hard pressed . . . what the argument would there be as to why the undercover shot anybody if there was no issue as to buy money” (A.59 [T.21]). Defense counsel, then, failed to offer any alternative theory to explain the shooting. And, on summation, he even inferred that the loss of the buy money was the reason for the shooting when he said it occurred because UC44 was “going to take down these two guys himself” (A.1741 [T.2040]). In other words, even this admission by Rushing was consistent with the defense theory. See People v. Martin, 58 A.D.3d 519 (1st Dept. 2009) (“brief references merely placed defendant at the scene, and his presence at the scene was essentially consistent with the defense theory 64 of the case”); People v. Mitchell, 180 A.D.2d 906 (3d Dept. 1992) (harmless where admission “consistent with defendant’s own direct testimony . . . and did not implicate defendant any further”). Regardless, defendant’s convictions for robbery, petit larceny, imitation firearm, and menacing did not rest on the recovery of the buy money, but on the credited testimonies of multiple officers that placed the imitation pistol in the Jeep (a fact Rushing denied), corroborating UC44’s testimony that defendant threatened him with that firearm. In sum, defendant’s guilt was established by properly admitted evidence that was “so overwhelming, and the prejudicial effect [if any] of [Rushing’s] admission [was] so insignificant by comparison, that it is clear beyond a reasonable doubt” that any error in its admission was harmless. Schneble, 405 U.S. at 430. 65 CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED AND REMITTED FOR CONSIDERATION OF THE REMAINING ISSUES NOT CONSIDERED BY THE APPELLATE DIVISION. Respectfully Submitted, ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent BY: _________________ NOAH J. CHAMOY Assistant District Attorney JOSEPH N. FERDENZI NOAH J. CHAMOY Assistant District Attorneys Of Counsel June 22, 2015