People v. Marcus

• Decision Date: 16 February 1988
• Parties: The PEOPLE, etc., Respondent, v. Jerome MARCUS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 806

524 N.Y.S.2d 806

137 A.D.2d 723

The PEOPLE, etc., Respondent, v. Jerome MARCUS, Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 16, 1988.

Dominic J. Sichenzia, Garden City, for appellant.

Jerome Marcus, pro se.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Ann Bordley and Peter R. Chatzinoff, of counsel), for respondent.

Before KUNZEMAN, J.P., and KOOPER, SPATT and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered November 14, 1984, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED, that the judgment is affirmed.

The robbery in this case was committed by five men, four of whom were arrested. Three of those arrested--the defendant, Alonzo Brown and Ivan Paris--were tried together. After his arrest, Paris made a statement to the police implicating himself and Brown. The trial court, over the defendant's objection, redacted those portions of Paris's statement naming the codefendant Brown and replaced his name with the words "another male". Paris did not testify. The defendant contends that the holding of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, prohibited the introduction of Paris's redacted statement in that the jury could have inferred that the defendant was the "other male".

We find that the introduction of the redacted statement does not warrant reversal. It was not facially incriminating, and proper limiting instructions were given to the jury concerning the use of the codefendant's statement as evidence against the other defendants ( Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176). Moreover, in this case, the phrase "another male" did not necessarily refer to the defendant. Even assuming that the jury disregarded the court's instructions, they could have interpreted that phrase as referring to the codefendant Brown or to the unapprehended fifth robber. Nothing in the redacted statement pointed to the defendant rather than the others. Indeed, Paris's statement was so filled with confusing references to "another male," "two other males" and "two guys with guns" that it would have been difficult for the jury to make a connection between these phrases and any of the defendants. Thus, under the circumstances of this case and in light of the court's clear and unequivocal instructions, it is unlikely that the jury would have inferred that the phrase "another man" implicated the defendant. Accordingly, the defendant was not deprived of his right to confront and cross-examine a witness against him (see, Richardson v. Marsh, supra, at ----, 107 S.Ct. at 1709; see also, People v. Wise, 135 A.D.2d 593, 522 N.Y.S.2d 172 ).

Furthermore, assuming that the redacted statement should not have been admitted, the error was harmless beyond a reasonable...