People v. Graham
| Decision Date | 26 February 1990 |
| Citation | 158 A.D.2d 714,552 N.Y.S.2d 162 |
| Parties | The PEOPLE, etc., Respondent, v. Melvin GRAHAM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James K. Weeks, Syracuse, for appellant, and Melvin Graham, appellant pro se.
Charles J. Hynes, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and David M. Pollack, of counsel), for respondent.
Before MOLLEN, P.J., and EIBER, SULLIVAN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Zweibel, J.), dated May 19, 1988, 140 Misc.2d 417, 531 N.Y.S.2d 172, which denied his motion pursuant to CPL 440.10(1)(h) to vacate a judgment of the same court (Bourgeois, J.), rendered January 10, 1983, convicting him of murder in the second degree and robbery in the first degree. By decision and order of this court dated May 12, 1986, the judgment was affirmed ( People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83).
ORDERED that the order is affirmed.
At his trial, the defendant's confession, which was both oral and videotaped, was detailed and comprehensive, and satisfactorily explained his part in the crime. In addition, the defendant did not repudiate his confession, and he was identified in court by a witness to the crime. Thus, the overwhelming evidence of the defendant's guilt renders any error in admitting the codefendant's "interlocking" confession harmless beyond a reasonable doubt (see, People v. DiNicolantonio, 74 N.Y.2d 856, 547 N.Y.S.2d 837, 547 N.E.2d 92; People v. West, 72 N.Y.2d 941, 533 N.Y.S.2d 50, 529 N.E.2d 418; People v. Flores, 153 A.D.2d 585, 544 N.Y.S.2d 630).
That being so, the defendant, whose conviction became final prior to the decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162, on remand 70 N.Y.2d 733, 519 N.Y.S.2d 959, 514 N.E.2d 379; see, People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83, supra ) is not entitled to relief under CPL 440.10(1)(h), even if we were to assume, arguendo, that Cruz v. New York (supra), should be given retroactive effect as to cases on collateral review (Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334; Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199).
We have considered the contentions raised by the defendant in his supplemental pro se brief and find them to be without merit.
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