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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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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

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                                - 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 large-
scale 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.

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                               - 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


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                               - 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-


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                               - 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,

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                               - 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"


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                               - 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

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                               - 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]).

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                              - 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


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                              - 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


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                              - 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


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                              - 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,


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                              - 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




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