This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 38
The People &c.,
            Respondent,
        v.
John Stone,
            Appellant.




          Lisa A. Packard, for appellant.
          Robert A. Spolzino, for respondent.




RIVERA, J.:
          Defendant John Stone principally challenges his
conviction on one count of first-degree assault based on an


                              - 1 -
                                - 2 -                        No. 38

alleged deprivation of a fair trial due to a violation of his
right of confrontation.   His challenge is without merit because
the trial court eliminated any prejudice to defendant by striking
the offending testimony from the record and instructing the jury
to disregard the statements.
          Defendant was tried before a jury on charges arising
from an assault on his estranged wife's intimate partner.    At
trial, the victim testified that he was hailing a cab with
defendant's estranged wife and daughter when someone came up from
behind and stabbed him several times.   The victim turned around,
removed his jacket to fight and recognized the attacker as
defendant.   The victim then saw defendant run over to his wife
and heard defendant say, "I told you. I told you not to have no
n*gga around my daughter."
          At the time of the trial, the People were unable to
locate the wife to testify, and her absence was a central issue
of dispute between counsel.    The People informed the court that,
although defendant's wife identified him to the police as the
attacker shortly after the incident, she told the prosecutor
before trial that she did not see defendant at the scene and did
not wish to testify.   When they could not find her, the People
sought to have a detective testify as to law enforcement's
efforts to locate the wife.    Defense counsel objected, claiming
that this would result in a favorable inference for the People
and was extremely prejudicial to defendant because he would not


                                - 2 -
                                - 3 -                          No. 38

be able to cross examine her.   The court denied the People's
request, concluding that the testimony would be prejudicial
because the jury would likely draw the inference that the wife's
testimony would be harmful to the defendant.    To avoid any
adverse impact to the People's case, the court determined it
would instruct the jury that the wife was "unavailable and,
therefore, could not be called as a witness."
          After the victim testified, the People called one of
the detectives who had investigated the case and elicited the
following testimony during direct examination:
     Prosecutor: Did there come a time when you were
     actually assigned to investigate this incident?
     Detective: Yes.
     Prosecutor: When did that occur?
     Detective: That morning.
     Prosecutor: Now, upon learning this information from
     the Night Watch detectives, what did you do?
     Detective: The first thing I did was I conducted a
     telephone interview of a witness, [defendant's wife].
     Prosecutor: And you had a conversation with her?
     Detective: I did.
     Prosecutor: Now, after you had a conversation with
     [defendant's wife], what did you do?
     Detective: I did several computer checks on the person
     that had been indicated as a suspect, John Stone.


                                - 3 -
                               - 4 -                          No. 38

          Defense counsel immediately objected to the "whole
implication" arising from the detective's testimony about the
wife, and asked that the testimony be stricken.   Outside of the
jury's presence, the People agreed that the court could address
the issue by striking the testimony and directing the jury not to
draw any inferences from the detective's statements.   Defense
counsel additionally moved for a mistrial because the testimony
implied that the wife had identified defendant as the assailant,
without providing information about her later recantation.
Counsel further argued that the detective had corroborated the
testimony of the only other eyewitness, the victim, and caused
the exact prejudice that the court went to "great lengths" to
avoid.
          The court denied the mistrial motion, but granted the
request to strike.   Upon the jury's return to the courtroom, the
court instructed the jurors that "the testimony that the
detective spoke to [the wife] is stricken. You're to disregard
it. Further, the testimony about the fact of doing computer
checks on a certain person is stricken and you are to disregard
it."
          During the final charge, the court again instructed the
jury that any testimony that the court said to disregard "means
exactly that. It means it is no longer evidence in the case, it's
been stricken. It means you are to disregard it, meaning set it
out of your mind, not consider it for any purpose at all."    Later


                               - 4 -
                               - 5 -                           No. 38

in the charge, and in accordance with its prior ruling, the court
advised the jury that the wife was "unavailable and, therefore,
could not be called as a witness."
           The jury acquitted defendant of attempted murder in the
second degree, and convicted him of assault in the first degree.
Prior to sentencing, defendant moved pursuant to CPL 330.30 (2)
to set aside the verdict based on juror misconduct, claiming that
after the verdict his fiancée observed an interaction on the
street between the victim and a juror which suggested that they
knew each other.   The court denied the motion on the merits
without a hearing.   The court sentenced defendant to a
determinate term of 22 years' imprisonment and five years' post-
release supervision.
           The Appellate Division affirmed, concluding that the
court prevented any prejudice to defendant by striking the
challenged portion of the detective's testimony and instructing
the jury to disregard it, and that the court properly denied the
330.30 motion without a hearing (121 AD3d 617 [2014]).    A Judge
of this Court granted defendant leave to appeal (25 NY3d 1172
[2015]).
           Defendant argues that the trial court erred in denying
his mistrial motion because the detective's testimony violated
his Confrontation Clause rights. He further argues that the trial
court violated his constitutional right to a fair trial by
denying his CPL 330.30 motion because he believes his motion


                               - 5 -
                               - 6 -                          No. 38

entitled him to a hearing on the issue. Both claims are without
merit.*
          With respect to defendant's principal argument, under
both the federal and state constitutions defendant has a right to
confront his accusers (US Const, Amend VI ; NY Const, Art I, § 6;
Crawford v Washington, 541 US 36, 51 [2004]; People v Eastman, 85
NY2d 265, 274-75 [1995]). That right applies to testimonial
statements, like the hearsay at issue here (Crawford, 541 US at
68; People v Pealer, 20 NY3d 447, 453 [2013]).   In response to
the question about what the detective did after speaking to the
wife, the detective stated, "I did several computer checks on the
person that had been indicated as a suspect, John Stone."   A
potential inference from this testimony is that the wife
identified defendant as a suspect and, under this theory,
defendant was deprived of his right to confront this witness.
          However, it was not the only fair inference to be
drawn, given that the jury knew that before detective spoke to
the wife he had spoken to the Night Watch Unit about the case and
the jury heard victim's testimony that he identified defendant to
the police at the hospital.   Thus, the jury could have inferred
that defendant was a suspect based on the victim's statements to
the police prior to the detective's call to the wife.
          An error impacting a constitutional right may only be


     * Based on the record, we reject the People's argument that
defendant did not preserve a constitutional challenge to the
admission of the detective's testimony.

                               - 6 -
                                 - 7 -                        No. 38

considered harmless when the evidence is overwhelming and "there
is no reasonable possibility that the error might have
contributed to defendant's conviction and that it was thus
harmless beyond a reasonable doubt" (People v Crimmins, 36 NY2d
230, 237 [1975], citing Chapman v California, 386 US 18, 24
[1967]).   Here, there is no reasonable possibility that the error
contributed to the guilty verdict, even in this single eyewitness
case, where the victim knew defendant and had no doubt that
defendant was the attacker.   Moreover, at the time of the
offending testimony and again during the jury charge, the court
instructed the jury that it must disregard all testimony stricken
and could not consider it for any purpose.   A jury is assumed to
follow the instructions of the court (People v Baker, 14 NY3d
266, 274 [2010]).   Thus, any prejudice associated with the jury's
exposure to the detective's testimony was eliminated by the trial
court's curative instructions.
           Defendant contends that the error here could not be
cured by the court's instructions. For evidence to be of the type
that cannot be overcome by curative instructions, the testimony
must be "powerfully incriminating" (People v Cedeno, 27 NY3d 110,
117 [2016], quoting Gray v Maryland, 523 US 185, 192 [1998]).    To
determine whether the testimony was powerfully incriminating a
court must consider its context, careful not to view the
testimony in isolation (see Richardson v March, 481 US 200, 208
[1987]).


                                 - 7 -
                                - 8 -                        No. 38

            Here, the detective did not expressly state that the
wife was a witness and that she had identified defendant as the
attacker.    While the testimony supported an inference to that
effect, there was another countervailing inference –– as
discussed above, the detective may have identified defendant as a
suspect based on information provided by the victim to the police
at the hospital and passed on to the detective once he took the
case, but before the detective spoke to the wife.    This inference
also flowed logically from the victim's testimony that the wife
was with the victim when he was attacked by defendant,
particularly because the jury heard this testimony immediately
before the detective testified.    As such, the jury could
reasonably infer that the police knew about the wife from the
victim and that his statements, relayed to the detective during
the briefing from the Night Watch Unit, led the police to treat
defendant as a suspect.    Given this context, the testimony was
neither powerfully incriminating nor, as the defendant argues,
did it alone transform the entire case from that in which the
People presented a single eyewitness to a case with two
eyewitnesses identifying defendant as the perpetrator.
            Defendant unpersuasively argues that the testimony was
powerfully incriminating because his wife was the source of the
hearsay, and the jury heard the victim testify she was present
during the attack.    He claims the reasoning of Bruton v United
States (391 US 123 [1968]) –- that a nontestifying co-defendant's


                                - 8 -
                               - 9 -                          No. 38

statements that incriminate a defendant are so prejudicial that a
jury cannot ignore them no matter the court's instruction ––
applies to his case.   We reject defendant's premise that in the
eyes of the jury the spousal relationship places defendant's wife
on the same footing as a co-defendant, standing "side-by-side
with the defendant" at a joint trial (see Bruton, 391 US at 135-
136; see also Cedeno, 27 NY3d at 117).   The detective's testimony
and the inferences to be drawn from it are not comparable to the
incriminating statements of a codefendant.   Unlike a codefendant
who stands charged with a defendant, the wife was in no way
implicated in defendant's crime.   Also, the victim testified that
he was no longer involved with the wife at the time of trial, so
she had no apparent allegiance either to him or to her ex-husband
defendant, and this diminished the significance of her absence.
In any case, even under Bruton, a codefendant's nonfacially
incriminating statement may be admitted when properly redacted to
remove any reference to a defendant's name and with limiting
instructions so that the jury is permitted to consider a
codefendant's incriminating statement, only as to that
codefendant (Cedeno, 27 NY3d at 118; Richardson, 481 US at 208
[1987]).   As such, any error associated with the testimony here
and any prejudice due to such error were adequately addressed by
the court's curative instructions, which directed the jury not to
consider the offending statement at all (see Cedeno, 27 NY3d at
118; see also Richardson, 481 US at 208).


                               - 9 -
                                  - 10 -                           No. 38

            Defendant's remaining claim that he is entitled to a
hearing on his CPL 330.30 motion is without merit (see CPL
330.40; People v Samandarov, 13 NY3d 433, 437-438 [2009]).
Accordingly, the Appellate Division order should be affirmed.
*   *   *     *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Rivera. Chief Judge DiFiore
and Judges Stein, Fahey, Garcia and Wilson concur.

Decided May 4, 2017




                                  - 10 -
