=================================================================

This opinion is uncorrected and subject to revision before

publication in the New York Reports.

-----------------------------------------------------------------

No. 24 

The People &c.,

 Respondent,

 v.

Assad Cedeno,

 Appellant.

De Nice Powell, for appellant.

Nancy Fitzpatrick Talcott, for respondent.

STEIN, J.:

The question before us is whether the admission of a

nontestifying codefendant's redacted statement to police violated

defendant's rights under the Confrontation Clause of the Sixth

Amendment to the United States Constitution. Because the

statement was facially incriminating, its admission was error

- 1 -
- 2 - No. 24

under Bruton v United States (391 US 123 [1968]) and its progeny. 

Inasmuch as that error was not harmless under the circumstances

of this case, we conclude that reversal is required.

I.

The charges against defendant arose out of a largescale fight between two rival gangs, the Trinitarios and the

Latin Kings. The victim, Ariel Pena Rodriguez, was stabbed and

killed during the fight. Defendant was thereafter charged in an

indictment -- along with six codefendants allegedly associated

with the Latin Kings -- with murder in the second degree, gang

assault in the first degree, assault in the first degree and four

counts of criminal possession of a weapon in the fourth degree. 

Prior to the incident, the victim and his friends,

including "Witness 1," were riding the subway when Witness 1 -- a

former Latin King who had joined the Trinitarios -- saw

codefendant Jason Villanueva staring at him from an adjoining

subway car. Witness 1 later observed Villanueva stroking his

face and laughing at him, which Witness 1 interpreted as a

reference to a prior incident in which Villanueva allegedly

slashed his face while defendant hit him with a cane. When the

train reached a station, the victim saw Trinitario gang members

on the platform and stepped out to greet a friend. Someone from

the group of Trinitarios then threw a bottle into the subway car

where defendant and other members of the Latin Kings were

located. The Latin Kings rushed the Trinitarios and the victim

- 2 -
- 3 - No. 24

stepped in front of Witness 1, at which point defendant,

Villanueva and codefendant Ariel Casares -- who each had knives -

- stabbed and beat the victim, while two other codefendants

punched and kicked him.

Police present at the station when the fight began

prevented anyone from leaving and requested backup. Additional

officers arrived on the platform shortly thereafter, while the

fighting continued. The officers separated the combatants,

restored order among the approximately 100 people involved,

obtained aid for the victim, and conducted identification

procedures. Approximately 40 minutes after the fight began,

police had potential witnesses identify the perpetrators. 

Numerous witnesses identified multiple offenders to different

officers. Witness 1 and "Witness 2" identified defendant as one

of the victim's attackers at the scene. The suspects and

witnesses were then taken to the precinct, where police spent

four hours confirming the identifications made at the scene. The

victim was transported to the hospital, where he died.

After an extensive Wade/Huntley hearing, Supreme Court

denied defendant's motion to suppress the identifications of him,

rejecting his arguments that the identifications at the scene

were suggestive and that the "confirmatory" identifications made

later at the precinct were tainted by the first identification at

the scene. Defendant also moved to sever his trial from that of

Villanueva in light of the People's notice of their intention to

- 3 -
- 4 - No. 24

admit a statement by Villanueva that described defendant as "one

of the Latin Kings wearing red and white trunks," and claimed

that defendant "pulled out a knife and rushed the whole crowd"

and then "ran over to the victim and started punching him with a

small knife." Supreme Court also denied that motion, as well as

defendant's request to redact Villanueva's description of the

assailants who stabbed the victim as being Latin Kings. The

court did, however, direct the People to remove the description

of defendant's clothing from Villanueva's statement. 

Defendant was tried jointly with codefendants

Villanueva, Casares and Christian Tineo.1

 Three eyewitnesses

identified defendant as having stabbed the victim; Witness 1 and

Witness 2 testified that they knew defendant as "Bambino" before

the attack, from school and gang activities. Villanueva's

redacted statement was also admitted, with jury instructions that

no deleted or redacted information could be considered. When a

detective testified that defendant's girlfriend at the time of

the fight told him that defendant was nicknamed "Bambino," the

court sustained an objection by defense counsel. However,

arguing that the objection could not be cured, counsel moved for

1 Casares was found guilty of first-degree manslaughter, as

a lesser included offense of murder, as well as first-degree gang

assault, first-degree assault and fourth-degree criminal

possession of a weapon, and was sentenced to 18 years in prison. 

Villanueva was found guilty of first-degree gang assault and was

sentenced to 16 years in prison. Tineo was acquitted of all

charges.

- 4 -
- 5 - No. 24

a mistrial on the grounds that the testimony about the nickname

was inadmissible hearsay that corroborated the testimony of

Witness 1 and Witness 2. The court denied the motion and counsel

declined the court's offer to give a curative instruction.

Defendant was convicted of first-degree gang assault

and fourth-degree weapons possession, and was acquitted of

second-degree murder and the lesser included manslaughter charge. 

The People dismissed three counts on which the jury deadlocked --

first-degree assault and two fourth-degree weapons possession

charges. Defendant was sentenced to an aggregate term of 16

years in prison, to be followed by five years of postrelease

supervision.

Upon defendant's appeal, the Appellate Division

unanimously affirmed (113 AD3d 695 [2nd Dept 2014]). The Court

rejected defendant's assertion that the admission of Villanueva's

redacted statement violated Bruton "because the subject redaction

would not have caused the jurors to 'realize that the confession

refers specifically to the defendant'" (id. at 697, quoting Gray

v Maryland, 523 US 185, 186 [1998]). The Court also concluded

that admission of the statement of defendant's former girlfriend

to the detective constituted hearsay but that the error was

harmless (see 113 AD3d at 697). Regarding defendant's objection

to admission of the pretrial identifications of him, the Court

determined that the identifications both at the scene of the

crime and at the precinct were reasonable under the circumstances

- 5 -
- 6 - No. 24

and were not unduly suggestive (see id. at 696). A Judge of 

this Court granted defendant leave to appeal (24 NY3d 959

[2014]).

II.

Defendant argues that the admission of Villanueva's

redacted statement violated his rights under the Confrontation

Clause, as discussed in Bruton. As this Court has previously

explained, the Confrontation Clause "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 NY3d 119, 127 [2005], cert denied 547 US 1159

[2006]). Introduction of a codefendant's testimony at a joint

trial generally does not violate the Confrontation Clause because

the codefendant "is not considered to be a witness 'against' a

defendant if the jury is instructed to consider that testimony

only against [the] codefendant" (Richardson v Marsh, 481 US 200,

206 [1987]). However, the Supreme Court has recognized a narrow

exception to the general rule concerning a codefendant's

confession that implicates the defendant, holding "that a

defendant is deprived of his [or her] 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" (id. at 207; see Bruton, 391 US at 135-

- 6 -
- 7 - No. 24

136). 

The exception, or Bruton rule, is necessary because:

"[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 . . .

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" 

(Bruton, 391 US at 135-136). In other words, the Bruton rule

provides "that certain 'powerfully incriminating extrajudicial

statements of a codefendant' -- those naming another defendant --

considered as a class, are so prejudicial that limiting

instructions cannot work" (Gray, 523 US at 192).

Richardson distinguished Bruton, thereby further

restricting the already narrow exception, for cases involving

confessions that are "not incriminating on [their] face, and

bec[o]me so only when linked with evidence introduced later at

trial" (Richardson, 481 US at 208; see United States v Lung Fong

Chen, 393 F3d 139, 148 [2d Cir 2004]; see also Gray, 523 US at

195 ["We concede that Richardson placed outside the scope of

Bruton's rule those statements that incriminate

inferentially."]). The Supreme Court reasoned that, "[w]here 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" (Richardson, 481 US at 208). Thus,

- 7 -
- 8 - No. 24

the Court held "that the Confrontation Clause is not violated by

the admission of a nontestifying codefendant's confession with a

proper limiting instruction when . . . the confession is redacted

to eliminate not only the defendant's name, but any reference to

his or her existence" (id. at 211).

In Richardson, the Court left open the question of the

admissibility of confessions "in which the defendant's name has

been replaced with a symbol or neutral pronoun" (id. at 211 n 5). 

The Court ultimately answered that question in Gray, concluding

that "Richardson . . . depend[s] in significant part upon the

kind of, not the simple fact of, inference," and upheld as

permissible those "statements that did not refer directly to the

defendant himself [or herself] and which became incriminating

'only when linked with evidence introduced later at trial'"

(Gray, 523 US at 196, quoting Richardson, 481 US at 208). In

that regard, "Bruton and its progeny . . . do not construe the

Confrontation Clause to demand further that a confession be

redacted so as to permit no incriminating inference against the

non-declarant defendant" (United States v Jass, 569 F3d 47, 60

[2d Cir 2009], certs denied 558 US 1159 [2010], 559 US 1087

[2010] [emphasis added]). Rather, the Bruton rule applies to

"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 confession the very first item introduced at trial"

- 8 -
- 9 - No. 24

(Gray, 523 US at 196 [emphasis added]). 

As the Second Circuit stated in Jass, further

elucidating Gray, "[t]he critical inquiry is . . . whether [a]

neutral allusion [to a confederate] sufficiently conceals the

fact of explicit identification [of the defendant] to eliminate

the overwhelming probability that a jury hearing the confession

at a joint trial will not be able to follow an appropriate

limiting instruction" (Jass, 569 F3d at 61). Redactions of a

statement "in which the non-declarant defendant's name [is]

replaced with 'a blank space or the word "deleted"' . . . [are]

inadequate to avoid Bruton's Confrontation Clause concern" (id.

at 57, quoting Gray, 523 US at 188), because such a redaction is

"more likely to emphasize than to conceal the fact that the

declarant has specifically inculpated someone" (Jass, 569 F3d at

59 [emphasis added]). In contrast to "replacing a defendant's

name with an obvious blank or 'deleted' reference," which is

"insufficient to avoid Bruton error, the Supreme Court indicated

[in Gray] that substituting neutral words might well pass

constitutional muster" (id. at 57) in the absence of an

indication that "th[e] confession refer[red] directly to the

'existence' of the nonconfessing defendant" (Gray, 523 US at

192).2 Thus, the Second Circuit articulated that a two-step

2 Similarly to the Second Circuit, we emphasize that "the

substitution of neutral pronouns for redacted names" does not

invariably resolve Bruton concerns (United States v Jass, 569 F3d

47, 56 n 5 [2d Cir 2009], certs denied 558 US 1159 [2010], 559 US

- 9 -
- 10 - No. 24

inquiry is appropriate in determining whether "particular

redactions and substitutions . . . [are] sufficient to avoid the

constitutional error identified in Bruton" (Jass, 569 F3d at 61). 

First, a court must examine whether a redacted statement

inculpates a specific person -- such as when a statement bears

"'obvious indications of alteration'" -- and, second, whether

that statement "even if 'the very first item introduced at trial'

would 'immediately' inculpate [the defendant] in the charged

crime" (id. at 61-62, quoting Gray, 523 US at 192, 196).

 This Court's decision in People v Wheeler (62 NY2d 867

[1984]) is entirely consistent with Jass; indeed, Wheeler

anticipated both Gray and Richardson. In Wheeler, we recognized

-- as did the Supreme Court in Richardson -- that, if a

codefendant's "confession . . . can be effectively redacted so

that the jury would not interpret its admissions as incriminating

the nonconfessing defendant, it may be utilized at the joint

trial" (Wheeler, 62 NY2d at 869). Further, as in Gray, we held

that merely replacing a defendant's name with the word "deletion"

1087 [2010]). Such "substitution[s] of a neutral word for a

defendant's name" are permissible only if made "in a way that

resemble[] a statement that a declarant might actually have made

if he [or she] had been trying to avoid specifically identifying

a confederate" (id. at 59). In Jass, "the redaction of

[defendant's] name from [codefendant's] confession and the

substitution of neutral words such as 'another person'" was

upheld because -- unlike the redacted statement at issue here --

the redaction "effectively concealed from the jury the fact that

[codefendant] had 'refer[red] directly to someone'" (id., quoting

Gray v Maryland,523 US 185, 196 [1998]).

- 10 -
- 11 - No. 24

is not an effective redaction that would render admissible a

codefendant's statement implicating a defendant (see id. at 869). 

Although there was evidence in Wheeler that a third individual

participated in the crime and the jury might have "viewed [the]

references in the confession as concerning this additional

participant," we deemed that possibility "insufficient to

eliminate the prejudice to [the] defendant from the use of [the]

statement upon his trial" (id.). Adopting reasoning nearly

identical to that in Gray, we explained: "Given that the two

[defendants] were being tried for the crime together, we believe

the confession could only be read by the jury as inculpating

[the] defendant" (id.). In other words, we concluded that the

redacted statement was inadmissible, first, because it contained

obvious indications that it was altered to protect the identity

of a specific person and, second, because it would be immediately

apparent that the statement, standing alone, implicated the

defendant (compare Jass, 569 F3d at 61-63).

Applying those principles here, we conclude that "the

admission [of Villanueva's statement] created an intolerable risk

that the jury would not, or could not, follow an instruction to

consider [the] redacted [statement] only against him, and not

against [defendant]" (id. at 61). We acknowledge that

Villanueva's statement, as read out loud at trial, did not appear

to have been obviously redacted. When read out loud, the

statement simply referred to a generic "Latin King," of which

- 11 -
- 12 - No. 24

there were many involved in the fight. However, the manner in

which the physical, written statement itself -- which was

provided to the jury -- was redacted made it obvious that

Villanueva expressly implicated a specific Latin King. The

identifying description of defendant was simply replaced with a

large blank space, and the statement further indicated that

"[t]he victim was bleeding the same Latin King [large blank space]

run over to the victim and starting punching him with a small

knife." The statement therefore ran afoul of the core concern

underlying the Bruton rule -- "[f]rom Bruton to Richardson to

Gray, the Supreme Court's Confrontation Clause concern has been

with juries learning that a declarant defendant specifically

identified a co-defendant as an accomplice in the charged crime"

(id. at 60). Given that defendant was one of three codefendants

sitting at the table with Villanueva, the statement powerfully

implicated him. 

Stated differently, the written statement was not

"effectively redacted so that the jury would not interpret its

admissions as incriminating the nonconfessing defendant[s]"

(Wheeler, 62 NY2d at 869). Rather, the statement, with large,

"blank [spaces] prominent on its face, . . . 'facially

incriminat[ed]'" a codefendant because it "involve[d] inferences

that a jury ordinarily could make immediately, even were the

confession the very first item introduced at trial" (Gray, 523 US

at 196, quoting Richardson, 481 US at 209). Any juror

- 12 -
- 13 - No. 24

"wonder[ing] to whom the blank might refer need[ed] only lift his

[or her] eyes to [Villanueva's codefendants], sitting at counsel

table, to find what [would] seem the obvious answer" (Gray, 523

US at 193). In our view, the replacement of the identifying

descriptors of defendant with blank spaces did not leave "the

slightest doubt as to whose name[] had been blacked out, but even

if there had been, that blacking out itself would have not only

laid the doubt but underscored the answer" (id. at 193-194

[internal quotation marks and citation omitted]), particularly

after the court instructed the jury that it was not to speculate

about the redactions in any way. The redacted statement both

"indicat[ed] to the jury that the original statement contained

actual names" or clearly identifying descriptors and, "even if

the very first item introduced at trial[,] [it] would immediately

inculpate [a codefendant] in the charged crime" (Jass, 569 F3d at

61 [internal quotation marks and citations omitted]; see Gray,

523 US at 196; Wheeler, 62 NY2d at 869). Therefore, we conclude

that its admission violated the Bruton rule.

III.

Nor can it be said that the error was harmless. The

evidence against defendant was not overwhelming. Three

eyewitnesses identified defendant, but the testimony of Witness 1

and Witness 2, was undermined by their admitted bias. 

Specifically, Witness 1 testified that he hated the Latin Kings

and wanted revenge on them for the prior incident in which his

- 13 -
- 14 - No. 24

face was slashed, and Witness 2 admitted that he was testifying

against defendant in exchange for a favorable letter to the

Parole Board. The third eyewitness did not know defendant before

the incident and did not identify him until trial -- she

identified two other codefendants at the scene but then became

frightened and neither identified anyone else nor participated in

the identifications at the precinct. In addition to the

foregoing factors, the nature of the attack itself -- a confusing

melee involving dangerous circumstances during which multiple

fights were occurring at once -- left the eyewitness testimony

open to challenge.

Moreover, under our state rule regarding harmless

error, even if "there was overwhelming proof of the defendant's

guilt, [the] inquiry does not end there . . . [, but f]urther

inquiry must . . . be made by the appellate court as to whether,

notwithstanding the overwhelming proof of the defendant's guilt,

the error infected or tainted the verdict" (People v Crimmins, 36

NY2d 230, 242 [1975]), i.e., whether there is a reasonable

possibility, in instances of constitutional error, such as that

at issue here, that the error affected the verdict (see id. at

241). There was a strong likelihood here that the jury

considered Villanueva's statement as implicating defendant,

thereby tainting the verdict. First, while the trial court did

instruct the jury not to consider the redactions in the statement

at all, the court failed to give the critical limiting

- 14 -
- 15 - No. 24

instruction that the jury should not consider the statement

itself against anyone but Villanueva (see Richardson, 481 US at

206 [admission of a codefendant's testimony at a joint trial does

not violate the Confrontation Clause because the codefendant "is

not considered to be a witness 'against' a defendant if the jury

is instructed to consider that testimony only against [the]

codefendant" (emphasis added)]). "[T]he law assumes that even a

redacted statement will prejudice a defendant if it is considered

against him" (Jass, 569 F3d at 60-61). Absent a proper limiting

instruction, and given both the statement's identification of two

individuals as the stabbers and the testimony at trial that

defendant and Casares were the stabbers, it cannot be said that

"there is no reasonable possibility that the erroneously admitted

[statement] contributed to the conviction" (People v Hamlin, 71

NY2d 750, 756 [1988]).

The erroneous admission of the statement must also be

considered in conjunction with the improper hearsay testimony

that defendant's girlfriend referred to defendant as "Bambino." 

As previously noted, the eyewitness identifications of Witness 1

and Witness 2 were open to challenge based upon their evident

biases. However, their testimony indicating that defendant --

who they knew as "Bambino" -- was one of the stabbers was

bolstered by the detective's testimony that defendant's own

girlfriend also called him "Bambino." Notwithstanding that the

trial court sustained an objection to the detective's testimony,

- 15 -
- 16 - No. 24

the confirmation that defendant was, in fact, "Bambino"

undermined his attempts to call the credibility of Witness 1 and

Witness 2 into question. Additionally, although not alone

determinative, we note that the jury here struggled with the

verdict, requiring the court to provide an Allen charge. The

jury not only acquitted defendant of second-degree murder and the

lesser included charge of first-degree manslaughter, but failed

to reach a verdict on three other counts against defendant. 

Under the circumstances, we reject the People's argument that the

error in the admission of Villanueva's statement was "harmless

beyond a reasonable doubt" (Hamlin, 71 NY2d at 756; see Wheeler,

62 NY2d at 869-870).

IV.

Finally, defendant's challenge to the denial of his

motion to suppress the identification testimony -- to the extent

that it was preserved3

 -- presents a mixed question of law and

fact (see People v Howard, 22 NY3d 388, 403 [2013]; People v

Gilford, 16 NY3d 864, 868 [2011]). "The due-process inquiry for

showups calls upon the suppression court to decide whether the

showup was reasonable under the circumstances -- i.e., justified

by exigency or temporal and spatial proximity -- and, if so,

whether the showup as conducted was unduly suggestive" (Gilford,

16 NY3d at 868). Inasmuch as "it simply cannot be said that no

3

 Defendant did not argue before the trial court, as he does

here, that precinct showups are inherently suggestive.

- 16 -
- 17 - No. 24

record support exists for [the] determination that this showup

was reasonable and not unduly suggestive" (Howard, 22 NY3d at 403

[emphasis added]), this mixed question is beyond our further

review.

As a result of our decision, we need not address

defendant's remaining contentions. The order of the Appellate

Division should be reversed and a new trial ordered.

- 17 -
The People of the State of New York v Assad Cedeno

No. 24 

PIGOTT, J.(dissenting):

The primary issue in this case boils down to whether

codefendant Villanueva's redacted statement "obviously refers to

the defendant" (Gray v Maryland, 523 US 185, 194 [1998]). The

majority holds that it does. I disagree. 

A redacted statement of a non-testifying codefendant

cannot be admitted at a defendant's joint trial if the redaction

"so closely resemble[s]" the facially incriminating statements

prohibited by Bruton v United States (391 US 123 [1968]) that the

jury cannot refrain from attributing it to the defendant (Gray,

523 US at 192). Redactions that simply "replace[] a defendant's

name with an obvious indication of deletion, such as a blank

space, the word 'deleted,' or a similar symbol," generally fall

within this rule (id.). However, it is not the case that every

redacted statement containing blank spaces or signs of deletion

must be excluded. If a redaction sufficiently conceals the

person to whom the blank spaces refer, the statement may be

admitted with proper limiting instructions (id. at 194).

Villanueva's redacted statement, read to the jury by

Detective Moser without objection, provided in pertinent part:

"Then all of a sudden one of the Latin Kings

pulled out a knife and rushed the whole

- 1 -
- 2 - No. 24

crowd. One of the Trinitarios asked me are

you with them. I said no. Then they started

throwing bottles. There was a commotion on

the platform and I started running after

them. I moved to the back of the car. The

Latin Kings were there. That's when . . .

[o]ne male pulled out a black knife. He went

out of the train. Then I looked out of the

car and observed him striking the victim with

the knife. The victim was bleeding. The

same Latin King . . . [r]an over to the

victim and started punching him with a small

knife. Cops came back up on the platform and

found the victim on the floor. Then more

police showed up." 

No one suggested that this statement "obviously refer[red] to the

defendant" (Gray, 523 US at 194). The identical statement was

introduced into evidence in written form. On paper, it read:

"[T]hen all the sudden one of the Latin Kings

 pulled out a knife and

rushed the whole crowd. One of the

Trini[t]arios asked me are you with them I

said no, then they started throwing bottles,

there was a cop on the platform and he

started running after them. I moved to the

back of the car the Latin Kings were there

that's when the one with male

pulled out a black knife he went out of the

train, then I looked out the car and observed

him striking the victim with the knife. The

victim was bleeding the same Latin King 

ran over to the victim and started punching

him with a small knife, the cop came back up

onto the platform and found the victim on the

floor, then more police showed up." 

Although the redacted statement contained blank spaces

and clear signs of alteration, it "would not have caused the

jurors 'to realize that the confession refers specifically to the

defendant'" (People v Cedeno, 113 AD3d 695, 697 [2d Dept 2014],

quoting Gray, 523 US at 186). The statement revealed only that

- 2 -
- 3 - No. 24

one Latin King pulled out a knife and punched the victim, while

another attacked him with a knife. But there were four Latin

Kings at the defense table, of whom Villanueva was one. Thus,

even if Villanueva's redacted statement "implicated a specific

Latin King" (majority op at 11), it is not at all clear which

Latin King it implicated -- defendant, Casares, Tineo, one of the

participants who pleaded guilty before trial, or yet another

person who may have escaped in the mayhem (see Gray, 523 US at

195 [noting that the blank spaces in a redacted statement may not

clearly refer to a defendant where the statement "uses two (or

more) blanks, even though only one other defendant appears at

trial, and in which the trial indicates that there are more

participants than the confession has named"]). A juror wondering

to whom the statement might refer would need to do much more than

"lift his [or her] eyes" to counsel's table to determine "what

[would] seem the obvious answer" (majority op at 12, quoting

Gray, 523 US at 193). He or she would first need to link the

statement with other evidence presented at trial and draw

inferences based on that evidence in order to conclude that

defendant may have been involved. Where such inference and

linkage is required, Bruton does not apply.1

1

 I question whether Villanueva's statement even falls

within Bruton's protections since it did not identify defendant

by name or specific description. It identified him only by an

article of clothing, when it said that "one of the Latin Kings

wearing red & white trunks pulled out a knife and rushed the

whole crowd." That fact alone makes this statement substantively

- 3 -
- 4 - No. 24

The Second Circuit's recent decision in Jass supports

this conclusion (569 F3d 47 [2d Cir 2009]). Defendant Jass and

codefendant Leight were charged with several counts of criminal

sexual activity with a child. After his arrest, Leight had made

a statement to the authorities that "he and Jass had taken [the

victim] to [a] mall in New Jersey" and, after they went shopping

they took the victim to a hotel and performed multiple sexual

acts with her (id. at 52). At trial, an FBI agent testified to a

redacted account of Leight's post-arrest admissions, substituting

the phrase "another person," "the other person" and "we" wherever

Leight had previously identified the defendant. Thus, as

redacted, the agent testified that "Mr. Leight told me that he

and another person had taken [Victim 2] to the Rockaway Mall in

New Jersey," that "he and the other person and [Victim 2]

returned back to the hotel," that "Mr. Leight stated to me that

[Victim 2] kissed him and the other person," etc. (id. at 53). 

The trial court admitted these redacted statements with

a limiting instruction to consider them only as evidence against

different from the ones at issue in Bruton and Gray, which

directly identified the defendant by name (see Bruton, 391 US at

124; Gray, 523 US at 192), as well as the statement in Harrington

v California, which identified the defendant as a "white guy" and

gave a description of his age, height, weight and hair color (395

US 250, 253 [1969]). Although the Court in Gray said that

"nicknames and specific descriptions" fall within Bruton's scope,

it has yet to apply a Bruton analysis to a statement like

Villanueva's that identifies the defendant only by brief

reference to the color of his shorts (id. at 195 [emphasis

added]). 

- 4 -
- 5 - No. 24

Leight.2 Defendant was convicted and claimed on appeal that the

redactions facially implicated her in the crime. The Second

Circuit disagreed, and held that no Sixth Amendment violation

occurred because "it would not have been immediately apparent to

a jury that heard only [the codefendant]'s redacted references to

'another person' that he was specifically inculpating [defendant]

in the abuse of [the victim]. . . . The 'other person' could have

been anyone" (id. at 62 [emphasis added]). The Second Circuit

reached this conclusion, notwithstanding the fact that Leight's

statements incriminated only one other person, and that Jass was

the only other defendant at trial.

Like the testimony admitted in Jass, it was not

immediately apparent to the jury that defendant was either the

"Latin King" or the "male" inculpated in the redacted statement. 

Any of the Latin Kings Villanueva described at the subway station

fit that description, as well as the three defendants on trial

with him. Because there is nothing in Villanueva's redacted

statement that identified, let alone "powerfully incriminat[ed]"

(Bruton, 391 US at 135) defendant as one of the perpetrators of

the crime, and none of defendant's remaining arguments warrants

reversal, I would affirm.

2

 The trial court in this case did not instruct the jury to

use the redacted statement only against codefendant Villanueva,

but defendant did not object to the court's instruction and does

not challenge it here. Therefore, the adequacy of the court's

charge in the context of the alleged Bruton error is not before

us (see People v Hawkins, 11 NY3d 484, 491-492 [2009]). 

- 5 -
- 6 - No. 24

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

Order reversed and a new trial ordered. Opinion by Judge Stein. 

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam and Fahey

concur. Judge Pigott dissents in an opinion in which Judge

Garcia concurs.

Decided March 29, 2016

- 6 -