People v. Cedeno

• Citation: 27 N.Y.3d 110,31 N.Y.S.3d 434,2016 N.Y. Slip Op. 02281,50 N.E.3d 901
• Parties: The PEOPLE of the State of New York, Respondent, v. Assad CEDENO, Appellant.
• Decision Date: 29 March 2016
• Court: New York Court of Appeals Court of Appeals

27 N.Y.3d 110
50 N.E.3d 901
31 N.Y.S.3d 434
2016 N.Y. Slip Op. 02281

The PEOPLE of the State of New York, Respondent,
v.
Assad CEDENO, Appellant.

Court of Appeals of New York.

March 29, 2016.

31 N.Y.S.3d 436

Lynn W.L. Fahey, Appellate Advocates, New York City (De Nice Powell of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens (Nancy Fitzpatrick Talcott, Robert J. Masters and John M. Castellano of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

50 N.E.3d 903

27 N.Y.3d 114

The question before us is whether the admission of a non-testifying 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 under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (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

50 N.E.3d 904

31 N.Y.S.3d 437

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 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.

27 N.Y.3d 115

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 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

27 N.Y.3d 116

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 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.

31 N.Y.S.3d 438

50 N.E.3d 905

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 A.D.3d 695, 978 N.Y.S.2d 328 [2d 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, 978 N.Y.S.2d 328, quoting Gray v. Maryland, 523 U.S. 185, 193, 118 S.Ct. 1151, 140 L.Ed.2d 294 [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 A.D.3d at 697, 978 N.Y.S.2d 328 ). 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 and were not unduly suggestive (see id. at 696, 978 N.Y.S.2d 328 ).

A Judge of this Court granted defendant leave to appeal (24 N.Y.3d 959, 996 N.Y.S.2d 219, 20 N.E.3d 999 [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” (

27 N.Y.3d 117

People v. Goldstein, 6 N.Y.3d 119, 127, 810 N.Y.S.2d 100, 843 N.E.2d 727 [2005], cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834 [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] co-defendant” (Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 [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, 107 S.Ct. 1702 ; see Bruton, 391 U.S. at 135–136, 88 S.Ct. 1620 ).

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

...