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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 25 

The People &c.,

 Appellant,

 v.

Keith Johnson,

 Respondent.

Noah J. Chamoy, for appellant.

David J. Klem, for respondent.

RIVERA, J.:

On this appeal by the People, we conclude that a defendant's

Sixth Amendment right of confrontation as recognized under Bruton

v United States (391 US 123 [1968]) and its progeny is violated

when a court admits into evidence, at a joint trial, a nontestifying codefendant's out-of-court statements which establish

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an element of the charged crime, and independently and powerfully

incriminate defendant in the underlying criminal conduct. In

this prosecution on an acting-in-concert theory, the

codefendant's statements were facially incriminating as to

defendant because they placed him in joint possession of the

proceeds of the robbery with which he was charged, and connected

defendant to drug-related activity. Given that defendant claimed

the People's law enforcement witnesses fabricated testimony to

inculpate him in crimes that never occurred, and that the

People's evidence was marred by materially significant

inconsistencies, the court's admission of codefendant's

statements, which confirmed possession of the drug money, was not

harmless error. Therefore, we affirm the Appellate Division

order reversing the judgment and remanding for a new trial.

I. 

Defendant Keith Johnson was tried jointly on various charges

of acting-in-concert with codefendant Joe Rushing related to the

theft of drug-buy money from an undercover police officer. 

According to the People's trial evidence, an undercover police

officer--referred to as UC44--approached defendant on a public

street late one night seeking to purchase drugs. There was

testimony at trial that UC44 was working as part of a sevenperson field team, formed to conduct "buy and bust" operations

whereby undercover officers worked a neighborhood to identify and

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arrest suspected drug dealers from whom they would attempt to

purchase drugs. Defendant was standing across from a check

cashing business when UC44 walked up to him and asked about

purchasing crack cocaine. In response to defendant's question

whether UC44 was a "cop," UC44 lifted his shirt to show he was

not wearing a wire. In fact, UC44 had a concealed radio

transmitter on his person which relayed his conversations with

defendant to other undercover members of the field team.

Defendant told UC44 to follow him and led UC44 around the

corner to a car parked with the engine running. Codefendant was

in the driver's seat as defendant entered and sat down on the

front passenger side. Once in the car defendant told UC44 to

give him the money, and UC44 replied "[n]o, give me the stuff." 

Codefendant told UC44 that he wanted to count the money and so

UC44 reached over and handed codefendant $30 in pre-recorded

drug-buy money. As he leaned back to get the drugs from

defendant, defendant pulled out a pistol. UC44 stepped back,

raised his hands, and exclaimed "gun, gun, gun" to alert the

other undercover officers who were listening in.

As codefendant drove away, defendant pointed the gun out the

window at UC44. The undercover officer then shot at the car

through the rear passenger window, striking defendant in the

shoulder. The officers from the field team pursued and caught up

with the codefendants at a traffic light. Guns drawn, they

approached the car and took defendant and codefendant into

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custody. Defendant was bleeding and subsequently taken to the

hospital. During the search of the car the officers recovered a

gun from the floor between the passenger's side door and seat. 

During the search of codefendant's person the officers found the

$30 in premarked bills in his pants pocket.

After testimony from several of the People's witnesses,

including members of the field team and UC44, the People

introduced a redacted version of codefendant's statements to the

grand jury. The court had previously deemed the statements

admissible over defendant's objections and after denying defense

counsel's request for severance. Prior to introduction of the

statements the court instructed the jurors that they could only

consider the grand jury testimony as to codefendant, and that

this evidence was not applicable to or binding upon defendant.

In the grand jury statements read to the jury, codefendant

asserted that on the evening of his arrest, he and defendant were

driving around searching for defendant's stolen car. Codefendant

parked so defendant could get something to eat, and he waited in

the car, listening to music. Immediately after defendant

returned to the car, someone approached and, holding money out,

started asking about "the stuff." Codefendant said he did not

see anyone walking with defendant, and never saw a gun in his

car.

Codefendant further stated that after the man approached, he

dropped money into the car. At that point codefendant determined

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it was time to leave, and began driving away "[b]ecause that

[sic] something I didn't want to get myself in because I've been

involved in situations like that. When I saw that, I knew it was

time for me to leave." As he pulled away, the man fired at the

car through the back window and wounded defendant. Codefendant

also asserted that police officers appeared at a red light where

he was stopped soon after, pulled him out of the car, and started

beating him up before they arrested him and defendant. In

response to questioning from the Assistant District Attorney,

codefendant admitted that he put the $30 in pre-recorded buy

money in his pants pocket, explaining that he was scared and

asking rhetorically, "what was [he] supposed to do [sic]."

In summation, defendant's counsel argued that the field team

officers who testified fabricated a story of a drug-buy gone

wrong in order to protect UC44 from an unjustified discharge of

his weapon. He argued that UC44 was new to the field team and

targeted defendant to show how he was able to "take down two guys

himself." He pointed to various discrepancies in the testimony,

and suggested that the police tampered with evidence.

For her part, the prosecutor argued in summation that the

only believable version of the events was that given by the

police. In making her arguments she relied heavily on

codefendant's statements, reading back select portions, to

compare with and corroborate the police testimony, and to

establish the unreliability of defendant's claims of fabrication. 

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During one prominent segment of her summation concerning the

events in the car, she described how codefendant's statements

generally mirrored the testimony of UC44, and informed the jury

thusly, 

"So what does [codefendant] tell you? Forget

about my witnesses. What does [codefendant]

tell you? He tells you he's in his car, his

friend [defendant] comes back to the car, he

gets into the car. Some strange man comes to

the car saying, where's the stuff? Where's

the stuff? What did [UC44] tell you? He

told you I had a conversation with

[defendant] outside. He said follow me back

to the car. They go back to the car. 

[Defendant] gets in the car, he gets in the

passenger side. [Codefendant] says he gets

in the passenger side. There's a second

person. What does [codefendant] tell you? 

He's in the driver's side. What does [UC44]

tell you? He says where's the stuff? What

does [codefendant] tell you? He says where's

the stuff?"

Turning to the events surrounding the possession of the

drug-buy money, the prosecutor argued that codefendant was

telling the truth about part of the unfolding events. She told

the jury that the version of the story that made sense was the

story recounted by UC44, that he threw the money in the car

because defendant drew a gun on him, and that codefendant asked

for the money, counted it, and then put it in his pocket.

Later in her summation, the prosecutor again encouraged the

jury to rely on codefendant's statements in determining

defendant's guilt. She asked, 

"[h]ow do we know they were going to rob

someone? How do we know that they were going

to take the money? How do we know they were

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going to display a gun? Look at what they

did. Look at what [codefendant] tells you. 

Look at what they did, look at the evidence." 

She reminded the jury that defendant was liable as an accessory,

and closed by stating, "[t]hey're guilty of acting in concert,

they're guilty of taking this gun, they're guilty of pointing it

at [UC44], they're guilty of taking his money at gunpoint,

they're acting in concert."

The jury found defendant guilty of robbery in the second

degree (Penal Law § 160.10 [2] [b]), petit larceny (Penal Law §

155.25), menacing in the second degree (Penal Law § 120.14 [1]),

and possession or use of an imitation pistol or revolver

(Administrative Code § 10-131 [g]). The court sentenced

defendant to five years' incarceration followed by five years'

post-release supervision for the robbery conviction, to be served

concurrently with three 30-day terms on the other counts.

The Appellate Division reversed the judgment and remanded

for a new trial, holding that admission of codefendant's grand

jury testimony was error under Bruton because the statements were

facially incriminating as to defendant (123 AD3d 573, 575 [1st

Dept 2014]). The dissenting Justice held that the statement was

not facially incriminating as to defendant, because it was only

inculpatory when linked with further evidence adduced at trial

(id. at 579 [DeGrasse, J., dissenting]). A Justice of the

Appellate Division granted the People leave to appeal.

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II.

As a threshold matter, we reject defendant's argument that

this appeal does not present a legal question for our

consideration. Whether the trial court misapplied United States

v Bruton and its progeny, by admitting a non-testifying

codefendant's grand jury statements in violation of defendant's

Sixth Amendment right to confrontation, is a question of law

(Gray v Maryland, 523 US 185, 192 [1998]; United States v

Sarracino, 340 F3d 1148, 1158-1159 [10th Cir 2003]; accord United

States v Edwards, 159 F3d 1117, 1125 n 4 [8th Cir 1998]). 

Therefore, the Appellate Division's reversal was on the law and

this appeal is properly within our jurisdiction (NY Const art VI

3 [a]; CPL 450.90 [2] [a]). Resolution of the question presented

involves no more than the usual exercise of our power of review

to analyze the rights of confrontation afforded defendant under

existing legal standards, in order to determine whether those

standards were properly applied to the facts of this case. 

III.

The People argue that codefendant's statements were

exculpatory and did not attribute any criminal activity to

defendant. Therefore, the statements were not facially

incriminating, and their admission did not violate defendant's

right of confrontation. Alternatively, the People argue that

even if the statements should have been precluded, their

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admission was harmless error beyond a reasonable doubt because

the evidence of defendant's guilt was overwhelming, and the grand

jury statements could not have contributed to defendant's guilty

verdict since they supported his claim of innocence and provided

no new or incriminating information not already presented by the

People's other evidence.

We are unpersuaded by the People's legal analysis because it

relies on a misapplication of the United States Supreme Court's

Sixth Amendment Confrontation Clause jurisprudence. We further

conclude that the Appellate Division correctly determined that

codefendant's grand jury statements were incriminating as to

defendant in the constitutional sense, and their admission was

the type of error that cannot be considered harmless based on the

record before us.

"The Confrontation Clause of the Sixth

Amendment, extended against the States by the

Fourteenth Amendment, guarantees the right of

a criminal defendant 'to be confronted with

the witnesses against [that defendant].' 

[Accordingly, the] right of confrontation

includes the right to cross-examine

witnesses. . . . Therefore, where two

defendants are tried jointly, the pretrial

confession of one cannot be admitted against

the other unless the confessing defendant

takes the stand" 

(Richardson v Marsh, 481 US 200, 206 [1987] [internal citation

omitted]). In a trio of cases the United States Supreme Court

explored the boundaries of a defendant's Sixth Amendment's right

of confrontation as applied to non-testifying codefendants'

statements that implicate the defendant.

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In Bruton the Court stated that in some circumstances "a

jury can and will follow the trial judge's instructions to

disregard" a codefendant's statement as against another

defendant, but determined that "there 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" (Bruton, 391 US at 135). Such is the

case, the Court concluded, where "the powerfully incriminating

extrajudicial statements of a codefendant, who stands accused

side-by-side with the defendant, are deliberately spread before

the jury" (id. at 136). As a consequence, 

"[n]ot only are the incriminations

devastating to the defendant but their

credibility is inevitably suspect, a fact

recognized when accomplices do take the stand

and the jury is instructed to weigh their

testimony carefully given the recognized

motivation to shift blame onto others. The

reliability of such evidence is intolerably

compounded when the alleged accomplice . . .

does not testify and cannot be tested by

cross-examination" 

(id.).

Then, in Richardson, the Supreme Court explained that

Bruton's rule that the admission of a non-testifying

codefendant's statements deprives a defendant of the Sixth

Amendment right of confrontation applies to facially

incriminating statements, and not statements that incriminate

based on linkage to other evidence introduced at trial

(Richardson, 481 US at 208). The Court noted that in Bruton the

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"facially incriminating" statement "'expressly implicat[ed]' the

defendant as [the codefendant's] accomplice" (id. [internal

citation omitted]). 

The Court revisited the Bruton rule in Gray v Maryland, and

clarified that Richardson did not stand for the proposition that

"inference pure and simple" determines whether a statement falls

outside Bruton's scope (523 US at 195). Instead, "Richardson

must depend in significant part upon the kind of, not the simple

fact of, inference" (id. at 196). In fact, "Richardson's

inferences involved statements that did not refer directly to the

defendant . . . and which became incriminating 'only when linked

with evidence introduced later at trial'" (id.). These,

therefore, are the types of statements beyond the reach of Bruton

and the Sixth Amendment. In contrast, Bruton's protections apply

to inferences that "involve statements that, despite redaction,

obviously refer directly to someone, often obviously the

defendant, and which involve inferences that a jury ordinarily

could make immediately, even were the [codefendant's statements]

the very first item introduced at trial" (id.). For this class

of statements, the accusation "is more vivid than inferential

incrimination, and hence more difficult to thrust out of mind" 

and therefore cannot be allowed as evidence, even with a limiting

instruction (id.). 

With this understanding of Bruton's protections, we turn to

the merits of the People's appeal. It is undisputed that in his

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grand jury statements codefendant expressly identified defendant,

by name, as his friend, and as the person who had returned to the

car moments before an unknown man approached demanding "the

stuff" and throwing drug-buy money into the car, which

codefendant admitted he put in his pocket before driving away. 

Codefendant further explained to the grand jury that he had been

sitting in the car, with the engine running, waiting for

defendant to return from getting something to eat. 

These statements were powerfully incriminating as to

defendant, who was charged with acting in concert with

codefendant, who had in turn admitted to the grand jury an

element of the crime charged, namely that he was in possession of

the drug-buy money. Moreover, the ordinary inferences to be

drawn from the statements--without reference to any other

evidence presented to the jury--were that defendant was involved

in an arrangement to exchange drugs for cash, which explained why

the man approached the car demanding "the stuff" immediately

following defendant's return, and who willingly gave over money

to complete the drug purchase.1 Further, and contrary to the

1

Unlike the dissent we do not read codefendant's statement

so as to ignore what he specifically admitted and the inferences

to be drawn therefrom regarding his perception of unfolding

criminal activity. Codefendant stated that he knew what

buy-and-bust operations were, that he knew what prerecorded buy

money was, that the stranger threw money into the car after

asking about "the stuff", that codefendant drove away because the

situation was "something [he] didn't want to get [him]self in

because [he'd] been involved in situations like that," and that

he had prerecorded buy money in his pants pocket when he was

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dissent's suggestion (dissent op at 5), curative instructions

could not avoid the substantial risk that the jury would "look[]

to the incriminating extrajudicial statements in determining

petitioner's guilt" (Bruton, 391 US at 126).

The People argue that the statements cannot be inculpatory

because they are codefendant's exculpatory explanation for his

actions--albeit a false one. This argument is unpersuasive. 

Regardless of their implications for codefendant, the statements

do not exculpate defendant as they fail to account for

defendant's actions outside the car, before the stranger

approached.

We disagree with the dissent's characterization of the

statement as a "perfectly innocent explanation of the evening's

events" (dissent op at 2). The dissent appears to focus on

codefendant's excuses for his actions, while ignoring the obvious

criminal aspects of the story as retold. There is nothing

innocent about a stranger throwing money in a car and then

shooting at the car as it pulls away. Even the codefendant

perceived the events as suggestive of defendant's illicit

arrested. To the extent the dissent suggests that codefendant

did not admit possession of illicitly obtained money because he

did not use the term "pre-recorded" (see dissent op at 4 n 1),

the record tells a different story and establishes that when

asked about "prerecorded buy money in your pants pocket"

codefendant acknowledged the money found on him as such, and

never denied possession, choosing instead to explain how it ended

up in his pocket.

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conduct. As he explained, after the stranger approached,

questioned defendants about "the stuff," and put the prerecorded

money in the car, codefendant knew "it was time to get out of

there" and left the scene to avoid "a situation."

Moreover, a cursory reading of the statements reveal them to

be an attempt by codefendant to establish his innocence, and to

explain that he was unwillingly caught in a situation "[he]

didn't want to get [himself] in." Like so many other statements

that point the finger away from the speaker at someone else, the

statements here deflect guilt from codefendant while

simultaneously implicating the only other possible culpable

person, defendant. The critical question to be considered in a

Bruton analysis is whether the statements inculpate the

defendant, not whether the statements succeed in exculpating the

non-testifying codefendant. Thus, codefendant's statements

admitting possession of the robbery proceeds are facially

incriminating as to defendant, regardless of codefendant's

intention to establish his innocence.

The People also argue, and the dissent contends (dissent op

at 2-3), that the statements are not incriminating as to

defendant because, read in isolation without reference to any

other testimony or evidence, the statements do not ascribe

criminal conduct to defendant. As we have explained, this is not

a plausible reading of the grand jury statements. Codefendant

stated defendant was in the car with him when codefendant took

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the drug-buy money, put it in his pants pocket, and drove away. 

His statement also acknowledged that he was familiar with

"undercover buy and bust" operations and knew what constituted

"prerecorded buy money." Codefendant's statement explicitly

stated that he had the $30 prerecorded buy money in his pocket

when he was arrested. Codefendant attempted to give an

explanation that he hoped would establish his innocence by

suggesting that the officers fabricated their version of the

events. In so doing he made statements that on their face

incriminated defendant in the charged robbery, by explicitly

admitting to possession of the robbery proceeds, and through

appropriate inferences drawn from his statements connecting

defendant's conduct outside the car to drug-related activity.2

To the extent the People argue that codefendant's admission

of his possession of the money is meaningless without testimony

from the police about the drug bust operation, and that the

statements are inculpatory only by reference to the officers'

testimony, the argument is based on a misunderstanding of Bruton

and its progeny as applied to the facts of this case. A Bruton

analysis requires a court to read the statement to determine

whether the accusation "is more vivid than inferential

2

The dissent argues that codefendant's statement was in

actuality favorable to defendant (dissent op at 6). However,

without codefendant's statement there would be no admission of

possession of the prerecorded buy money, and no testimony

regarding criminal activity by defendant other than that of the

State's witnesses.

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incrimination, and hence more difficult to thrust out of mind."

(Gray, 523 US at 196 [internal quotation marks omitted], quoting

Richardson, 481 US at 208). Here, the People's theory of the

case was that defendant acted in concert with codefendant to rob

an undercover officer of $30 in drug-buy money. Codefendant's

statements explicitly incriminate defendant in the possession of

the robbery proceeds by admitting the taking of the $30 from the

man who approached the car, and also implicate defendant by

inference in the initial stages of a drug transaction before he

returned to the car. The inferences are drawn solely from

codefendant's statements, without reference to other evidence

elicited at trial that flesh out the People's version of the

events. They are in that sense self-contained, and as a

consequence do not come within the Richardson contraction of

Bruton. 

The dissent is incorrect that our holding will require

severance of every joint trial involving a codefendant's false

exculpatory statement and that our decision is an overbroad

interpretation of what constitutes a "facially incriminating"

statement (dissent op at 5). We do no more than apply existing

United States Supreme Court precedent regarding the Confrontation

Clause limitations on the admission of a non-testifying

codefendant's statement. 

We note that the People's analysis ignores the justification

for the rule adopted in Bruton, namely to avoid "the substantial

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risk that the jury, despite instructions to the contrary, [will]

look[] to the incriminating extrajudicial statements in

determining [a defendant's] guilt" (Bruton, 481 US at 126). As

the United States Supreme Court has recognized, that risk is all

the more acute in a joint trial such as the one here, where the

non-testifying codefendant's statements are untested by crossexamination, even though the codefendant "stands accused

side-by-side with the defendant," the "incriminating statements

are devastating," and, the credibility of the incriminations "is

inevitably suspect" because of "the recognized motivation to

shift blame onto others" (id. at 136). Those concerns were no

less pressing or present in defendant's joint trial where

codefendant did not take the stand.

IV.

A Bruton violation is subject to constitutional harmless

error analysis (People v Hamlin, 71 NY2d 750, 758 [1988]; see

also, People v Hardy, 4 NY3d 192, 198 [2005]). Under that

standard, "[c]onstitutional error may be harmless only if it is

harmless beyond a reasonable doubt, that is, there is no

reasonable possibility that the erroneously admitted evidence

contributed to the conviction" (id. at 756). As the Court has

often stated, the error cannot be harmless where the evidence is

not overwhelming and a reasonable possibility exists that the

erroneously admitted evidence contributed to defendant's guilty

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verdict (id.; People v Crimmins, 36 NY2d 230, 237 [1975]).

Given that only UC44 testified that a robbery had occurred,

and the defense's theory was that the police fabricated the story

of the drug-buy in order to explain what defendant argued was the

undercover police officer's unjustified shooting, the case turned

on which version of the events the jury credited--that of the

police or the defendant. The People's evidence in this regard was

not overwhelming. Only UC44 testified to the drug deal with

defendant, and defendant argued that UC44 was motivated to

fabricate the story of an intended drug transaction in order to

avoid adverse consequences for the unjustified shooting of

defendant. There were aspects of other police officers'

testimony that defendant argued supported his defense that the

officers were engaged in a cover up. These included conflicting

versions of how one of the rear car windows was smashed during

the arrests of defendant and codefendant, and the fact that both

undercover officers and two other officers working on the field

team that night all claimed to have variously lost their memo

books from that time or had them stolen. There was also evidence

that the officers had an opportunity to confirm their stories and

forensic evidence that undermined UC44's contention that

defendant pointed a gun at him, specifically the lack of

defendant's fingerprints on the gun.

Against this backdrop, codefendant's testimony undermined

the defense by admitting possession of the drug-buy money. Not

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surprisingly the prosecutor relied heavily on the grand jury

statements during her summation to establish defendant's guilt,

reading back portions to illustrate how codefendant corroborated

the events as described by the officers, in particular the

testimony of UC44. In closing, the prosecutor reminded the jury

that defendant acted in concert with codefendant and that they

were jointly guilty of taking the money from the undercover

officer. Moreover, during deliberations the jury requested a

read back of codefendant's statements "admitting he took the

money," indicating that the jury focused on the statement that

admitted an element of the crime. On these facts and under these

circumstances a reasonable possibility exists that codefendant's

statements contributed to the jury's guilty verdict.

V.

Given our determination, we need not address defendant's 

challenges to the conviction. Accordingly, the order of the

Appellate Division should be affirmed.

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The People of the State of New York v Keith Johnson

No. 25 

PIGOTT, J.(dissenting):

According to the rule set out in Bruton v United

States, a defendant is deprived of his Sixth Amendment right to

confront adverse witnesses if a non-testifying codefendant's

"powerfully incriminating" statement is admitted at their joint

trial (391 US 123, 135 [1968]). If a statement "[i]s not

incriminating on its face" but becomes "so only when linked with

evidence introduced later at trial," there is no Sixth Amendment

violation, and Bruton does not apply (Richardson v Marsh, 481 US

200, 208 [1987]).

The rationale for the Bruton rule is that some

statements are so explicitly and powerfully incriminating, the

jury cannot "possibly be expected" to refrain from using them as

evidence against the defendant (id. at 208). Where statements

are not facially incriminating but require inference or linkage,

however, "it is a less valid generalization that the jury will

not likely obey the instruction to disregard" them (id.). In the

latter situation, "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"

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(id.).

I dissent from the majority's conclusion that the

admission of the testimony codefendant Rushing gave before the

grand jury constituted a Bruton error and deprived defendant of

his Sixth Amendment right of confrontation. None of Rushing's

statements facially incriminated anyone and therefore, Bruton

does not apply. 

According to Rushing's statement, he and defendant were

driving around one evening looking for defendant's car. They

stopped for food at a plaza and, while Rushing stayed in the car,

defendant went in to one of the restaurants and got something to

eat. Rushing stated that after defendant returned to the car,

alone, "someone came to the vehicle talking about where is the

stuff and reaching money out." As Rushing began to drive away,

the man dropped $30 into the vehicle, which Rushing eventually

put in his pocket. 

That was the extent of Rushing's testimony -- a

perfectly innocent explanation of the evening's events that did

not implicate either defendant in any criminal activity. The

admission of this testimony did not violate defendant's right of

confrontation because, as Richardson directs, we are to assume

that the judge's limiting instruction successfully dissuaded

jurors from using Rushing's testimony to infer defendant's guilt.

The majority disagrees. It finds Rushing's testimony

"powerfully incriminating as to defendant," and therefore

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inadmissible under Bruton, for two reasons. First, the majority

claims "the ordinary inferences to be drawn from the statements -

- without reference to any other evidence presented to the jury -

- were that defendant was involved in an arrangement to exchange

drugs for cash" (majority op at 13). Not so. Rushing stated

that defendant "went over there to get something to eat [and

w]hen he came back to the car . . . [h]e wasn't with nobody. I

didn't see him with nobody" (emphasis added). I am at a loss to

understand how one could infer from this statement, standing

alone, as if it had been the "very first item introduced at

trial" (Gray v Maryland, 523 US 185, 196 [1998]), that defendant

did anything other than get food and return to the vehicle. The

idea that defendant set up a drug deal while he was away from the

car could only have come from the testimony of the officers,

which requires the kind of linkage that falls outside Bruton's

narrow scope.

Second, the majority claims that Rushing's testimony

"explicitly incriminate[d] defendant in the possession of the

robbery proceeds by admitting the taking of the $30 from the man

who approached the car" (majority op at 16-17). According to the

majority, his testimony established an element of the charged

crime and placed defendant in joint possession of the robbery

proceeds. It did no such thing. Rushing stated that he picked

up the money the man dropped into the car and put it in his

pocket. Whether a robbery occurred and whether that money

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constituted the proceeds of a robbery was established only

through the testimony of the officers involved and the

introduction of the buy money itself.1

"As Bruton and subsequent cases make clear, [an]

extrajudicial statement must clearly implicate the defendant in

order for there to be a violation of that defendant's sixth

amendment right to confront adverse witnesses" (Vincent v Parke,

942 F2d 989, 991 [6th Cir 1991] [emphasis added] [internal

citations omitted]). Rushing's testimony did not implicate

defendant in any crime, nor did it shift blame onto defendant. 

It provided a wholly innocent explanation that, if believed by

the jury, exculpated both men and therefore did not violate

defendant's Sixth Amendment rights (see United States v Rubio,

709 F2d 146, 155 [2d Cir 1983] [holding that it was proper to

admit a non-testifying codefendant's statement that provided an

innocent explanation for defendant's possession of drug

paraphernalia commonly used to weigh and test cocaine because the

statements "were not inculpatory" and did not shift blame onto

defendant]). 

Not only does the majority's erroneous conclusion

1

 The majority suggests that Rushing "admitted that he put

the $30 in pre-recorded buy money in his pants pocket" (majority

op at 5). That statement, however, came from the prosecutor and

therefore does not bear on the question of whether Rushing's

statements facially incriminated defendant in the possession of

the robbery proceeds. For his part, Rushing never used the term

"pre-recorded" or acknowledged that the money he put in his

pocket was buy money. 

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- 5 - No. 25

misapply Bruton and Richardson, but it also may have the

practical effect of requiring severance of every joint trial in

which a false exculpatory statement of one defendant is sought to

be used, in direct conflict with the State's "strong public

policy favor[ing] joinder" (People v Mahboubian, 74 NY2d 174, 183

[1989]). Specifically, this Court has held that a defendant is

unduly prejudiced by the redaction of a non-testifying

codefendant's statement where the redaction removed material that

"supported [the defendant's] arguments and if believed, it

explained much of the evidence against him (id. at 189). 

Sometimes called a "reverse" Bruton violation (see People v

Higgins, 299 AD2d 841 [4th Dept 2002], lv denied, 99 NY2d 614,

615 [2003]), this undue prejudice may be present even where the

"material was not 'exculpatory' in the strictest sense" but

"would have provided the jury with an explanation for some of the

evidence equally consistent with an inference of innocence as of

guilt" (Mahboubian, 74 NY2d at 189; see also People v La Belle,

18 NY2d 405, 410 [1966] [concluding that the trial court abused

its discretion in denying defendant's motion for a severance

where a redacted statement "seriously prejudiced" the declarant

by eliminating portions that tended to exculpate him]). Here,

without Rushing's statement, there was no nonspeculative evidence

supporting an innocent explanation for defendant's undisputed

presence at the scene or how he came to be shot by the undercover

officer. 

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- 6 - No. 25

Because the majority fails to explain what type of

redaction would satisfy both Bruton and Mahboubian and has

construed the term "facially incriminating" so broadly that it

includes evidence that supported an inference of innocence, any

effort to eliminate potential Bruton problems in the wake of

today's decision may very well result in undue prejudice to

codefendants, like Rushing and defendant, who stand to benefit

from the statement's introduction. 

I would avoid altogether the path the majority has

taken and hold that the trial court properly admitted Rushing's

statement with the limiting instruction that the jury could not

consider it as evidence against defendant. I am unpersuaded by

defendant's remaining arguments for affirmance and therefore

would reverse the order of the Appellate Division and remit the

matter to that court for consideration of issues not yet decided.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore

and Judges Abdus-Salaam and Fahey concur. Judge Pigott dissents

in an opinion in which Judges Stein and Garcia concur.

Decided March 29, 2016

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