People v. Bruno

• Decision Date: 14 November 2013
• Citation: 2013 N.Y. Slip Op. 07562,111 A.D.3d 488,975 N.Y.S.2d 22
• Parties: The PEOPLE of the State of New York, Respondent, v. Noel BRUNO, Jr., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 488

975 N.Y.S.2d 22

2013 N.Y. Slip Op. 07562

The PEOPLE of the State of New York, Respondent,

v.Noel BRUNO, Jr., Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Nov. 14, 2013.

Richard M. Greenberg, Office of The Appellate Defender, New York (Kerry S. Jamieson of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Jason S. Whitehead of counsel), for respondent.

MAZZARELLI, J.P., ANDRIAS, FREEDMAN, GISCHE, JJ.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J. at severance motion; John W. Carter, J. at jury trial and sentencing), rendered December 3, 2009, convicting defendant of murder in the first degree, murder in the second degree (two counts), attempted murder in the second degree, burglary in the first degree, attempted robbery in the first degree and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to an aggregate term of life without parole, unanimously affirmed.

On the evening of September 20, 2005, Johanna H. and Elvis H. were visiting the apartment that Miguel A. shared with Dilcia T. and her young son. According to Johanna, there was a knock on the door, and three men, one of whom was armed with a gun, forcibly entered and repeatedly threatened to kill everybody if Miguel did not reveal where the “stuff” was. The men ransacked the apartment, bound the victims with duct tape, and took certain property from them.

Johanna testified that after beating Miguel, one of the men, whom she later identified as defendant, strangled, then shot Miguel. Elvis and Dilcia were also shot to death. Johanna was wounded in the shoulder. Johanna testified that when one of the men saw that she was still alive, defendant straddled her and fired another shot, which Johanna believed struck her right cheek. She also testified that, as the men fled, defendant fired multiple shots behind him and inadvertently struck one of his accomplices, whom she later identified as codefendant Jose Curet, in the arm. After the police arrived, Johanna told them what had happened and described the perpetrators.

The codefendant was arrested at the hospital where he was being treated for his gunshot wound. DNA testing revealed that bloodstains on his clothing belonged to Miguel and Elvis. Police were also given information that led to the arrest of defendant, who had Elvis's cell phone in a bag in his car. Defendant's own cell phone was found under Miguel's body. Defendant made a written statement implicating himself and his codefendant in the crime, but claimed he was not the shooter. Johanna identified defendant in a photo array and defendant and codefendant in separate lineups.

The court properly exercised its discretion in denying, in part, defendant's request for a severance of his trial from that of his codefendant and instead utilizing separate juries ( see People v. Ricardo B., 73 N.Y.2d 228, 233–235, 538 N.Y.S.2d 796, 535 N.E.2d 1336 [1989] ). The court excused defendant's jury during certain portions of the trial pertaining specifically to the codefendant, which minimized any potential prejudice resulting from the two defendants' antagonistic defenses ( see People v. Mahboubian, 74 N.Y.2d 174, 183–184, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989] ). Defendant failed to present sufficiently strong grounds for ordering completely separate trials, given that the proof against the two defendants was supplied by the same evidence ( see id. at 183, 544 N.Y.S.2d 769, 543 N.E.2d 34). The use of separate juries effectively prevented defendant's jury from hearing unduly prejudicial arguments or evidence relating to the codefendant. To the extent defendant's jury may have heard anything it might not have heard at a separate trial, this did not deprive defendant of a fair trial under the circumstances. In any event, any error in this regard was harmless in light of the overwhelming evidence of guilt ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). In addition to the eyewitness identification testimony of a surviving victim and defendant's own admissions that tied him to the crime, the evidence showed that defendant was arrested while in possession of a cell phone belonging to one of the victims and that he left his own cell phone at the scene of the crime. The account of the eyewitness, who had ample opportunity to observe defendant during the commission of the crime, was also consistent with the physical evidence found at the scene. The Crime Scene Unit found that the three deceased victims had been bound with duct tape and that all had gunshot wounds. The medical examiner concluded that Miguel had been strangled and that he had a gunshot wound to the head. A ballistics examination revealed that the shell casings found throughout the apartment were all fired from the same gun.

The court should have permitted defense counsel to conduct some re-cross-examination of a crime scene detective after the codefendant's counsel inquired into new areas on cross-examination that were not addressed in the People's direct examination ( see Spatz v. Riverdale Greentree Rest., 256 A.D.2d 207, 208, 682 N.Y.S.2d 370 [1st Dept.1998] ). The codefendant's counsel's cross-examination concerned the failure to swab blood from inside the apartment, which, according to defendant, could have led the jury to speculate about whether the codefendant was bleeding in the apartment after being shot by defendant, supporting the codefendant's contention that defendant tried to kill him to eliminate him as a witness. However, the error was harmless. In addition to the overwhelming evidence of defendant's guilt, it had already been established that the codefendant had been shot and that his DNA matched the blood found in the hallway. The testimony developed by codefendant's counsel related to whether codefendant bled or did not bleed inside the apartment, and did not establish that defendant intended to shoot his codefendant.

Defendant's constitutional argument that the preclusion of his redirect examination violated his right to confront the witness against him is not preserved ( see e.g. People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006]; People v. Kello, 96 N.Y.2d 740, 743, 723 N.Y.S.2d 111, 746 N.E.2d 166 [2001] ), and we decline to review it in the interest of justice. As an alternative holding, we find that any constitutional error in this regard was likewise harmless beyond a reasonable doubt ( see People v. Eastman, 85 N.Y.2d 265, 276, 624 N.Y.S.2d 83, 648 N.E.2d 459 [1995] ).

When the surviving eyewitness, as a result of an objection by codefendant's counsel, attempted to distinguish defendant from the other perpetrators of the crime by repeatedly referred to him as “the assassin,” i.e. the shooter, the court should have promptly directed her to use a more neutral word. However, we find this error to be harmless since the evidence of defendant's guilt was overwhelming, and the error was not unduly prejudicial under the circumstances of the case (People v....