People v. Pinto, 101740.

• Decision Date: 20 November 2008
• Docket Number: 101740.
• Citation: 56 A.D.3d 956,2008 NY Slip Op 09120,868 N.Y.S.2d 338
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RORY PINTO, Appellant.
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 956

868 N.Y.S.2d 338

2008 NY Slip Op 09120

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. RORY PINTO, Appellant.

101740.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 20, 2008.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered January 11, 2006, upon a verdict convicting defendant of the crimes of burglary in the second degree (two counts), robbery in the second degree (two counts) and criminal use of a firearm in the second degree.

ROSE, J.

Two men wearing masks and wielding a handgun pushed their way into an apartment, tied up the two female occupants, threatened to kill them, demanded money at gunpoint and ransacked the apartment. Finding no money, but taking a red cellular phone from one of the victims, the men left the apartment and found themselves immediately surrounded by police. One of the men, later identified as defendant, was quickly arrested. The other man, later identified as Omar Perkins, escaped, but he was soon caught and arrested after having been observed throwing away a gun. Perkins was also found to be in possession of a red cellular phone of the same brand and type as that stolen from one of the victims. After defendant and Perkins were later indicted on numerous charges related to the incident, County Court denied defendant's motion for a separate trial and permitted the People to introduce Perkins's incriminating written statement which described the involvement of both men, but omitted defendant's name.

At the end of the joint trial, the jury initially returned a verdict convicting both defendant and Perkins of all charges (People v Perkins, 56 AD3d 944 [2008] [decided herewith]). However, upon polling the jury and finding that all jurors were not in agreement with the verdict against defendant, County Court directed that deliberations as to his charges would continue the next day. When the proceedings resumed, County Court gave an Allen charge and, after further deliberations, the jury returned a verdict convicting defendant of two counts of burglary in the second degree, two counts of robbery in the second degree and one count of criminal use of a firearm in the second degree. Defendant was then sentenced to two concurrent prison terms of 12½ years for the two counts of burglary in the second degree, a concurrent prison term of 12½ years for criminal use of a firearm in the second degree and two prison terms of 12½ years with five years of postrelease supervision for the two counts of robbery in the second degree, with one such term to run concurrently and the other to run consecutively with the terms for burglary. Defendant now appeals.

Initially, we find merit in defendant's contention that his right of confrontation was violated when County Court permitted a police officer to read the insufficiently redacted written statement of Perkins, who did not testify, to the jury. A defendant's right of confrontation is violated where the confession of a nontestifying codefendant which facially incriminates the defendant is introduced at their joint trial (see Richardson v Marsh, 481 US 200, 207-208 [1987]; Bruton v United States, 391 US 123, 135-137 [1968]). Such a confession may be utilized at a joint trial only if it "can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant" (People v Wheeler, 62 NY2d 867, 869 [1984]).

Here, despite the removal of defendant's name, the substitution of neutral pronouns and a limiting instruction by the court, Perkins's account of the events on the day in question contained numerous incriminating references to another participant in the crime. For example, Perkins's description of his unnamed accomplice stated: "[He] [t]hen walked up the stairs [of the victim's apartment] and I followed behind him," "[w]e both tied up the girls" and "[w]e...