People v. Pizarro

• Decision Date: 09 June 2017
• Citation: 57 N.Y.S.3d 283,151 A.D.3d 1678
• Parties: The PEOPLE of the State of New York, Respondent, v. Dean Orlando PIZARRO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 1678
57 N.Y.S.3d 283

The PEOPLE of the State of New York, Respondent,
v.
Dean Orlando PIZARRO, Defendant–Appellant.

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

June 9, 2017.

57 N.Y.S.3d 284

Linda M. Campbell, Syracuse, for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, DeJOSEPH, NEMOYER, AND CURRAN, JJ.

Memorandum:

151 A.D.3d 1679

On appeal from a judgment convicting him upon a jury verdict of murder in the second degree ( Penal Law § 125.25[1] ) and criminal possession of a weapon in the

57 N.Y.S.3d 285

second degree ( § 265.03[3] ), defendant contends that he was denied a fair trial and his right of confrontation by the admission in evidence of out-of-court statements made by a codefendant. We reject that contention.

Defendant contends that County Court erred in allowing a witness to testify to statements made by a nontestifying codefendant. Defendant objected to that testimony on hearsay grounds, and later sought a mistrial on the ground that the admission of the statement violated his rights under Bruton v. United States , 391 U.S. 123, 135–136, 88 S.Ct. 1620, 20 L.Ed.2d 476, and we address first his Bruton contention. Even assuming, arguendo, that defendant's belated motion for a mistrial is sufficient to preserve for our review his current Bruton contention (cf. People v. Shabazz, 289 A.D.2d 1059, 1060, 735 N.Y.S.2d 691, cert. denied 537 U.S. 1165, 123 S.Ct. 976, 154 L.Ed.2d 903, affd. 99 N.Y.2d 634, 760 N.Y.S.2d 717, 790 N.E.2d 1146, rearg. denied 100 N.Y.2d 556, 763 N.Y.S.2d 814, 795 N.E.2d 40 ), we conclude that the introduction of the statements did not implicate the principles of the Confrontation Clause that underlie the rule in Bruton.

The statements at issue were made by a nontestifying codefendant to a person who testified at trial. That witness testified that the codefendant said before the incident that "we" were going to shoot the victim, and that after the incident the codefendant said that "we" had shot him. The witness testified that defendant was one of several people who were with the codefendant when the statements were made, but the witness then clarified that the codefendant also stated that both he and another perpetrator shot the victim, and the other perpetrator, who was also present during the conversation, agreed. With respect to defendant, the codefendant's "confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial" ( Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 ; see Gray v. Maryland, 523 U.S. 185, 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 ). " ‘Bruton and its progeny ... do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant’ " ( People v. Cedeno, 27 N.Y.3d 110, 118, 31 N.Y.S.3d 434, 50 N.E.3d 901, cert. denied – –– U.S. ––––, 137 S.Ct. 205, 196 L.Ed.2d 133 ).

151 A.D.3d 1680

To the contrary, it is well settled that "Richardson placed outside the scope of Bruton 's rule those statements that incriminate inferentially" ( Gray, 523 U.S. at 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 ). Thus, inasmuch as the statements are only inculpatory with respect to defendant when combined with other evidence establishing that he was also part of the crime, we conclude that the court did not err in admitting the nontestifying codefendant's statements because they were "not facially incriminating[ with respect to defendant], and proper limiting instructions were given to the jury concerning the use of the codefendant's statement[s] as evidence against [this] defendant [ ]" ( People v. Marcus, 137 A.D.2d 723, 723, 524 N.Y.S.2d 806, lv. denied 72 N.Y.2d 862, 532 N.Y.S.2d 512, 528 N.E.2d 903 ; see People v. Gilocompo, 125 A.D.3d 1000, 1001, 4 N.Y.S.3d 288, lv. denied 25 N.Y.3d 1163, 15 N.Y.S.3d 296, 36 N.E.3d 99 ; People v. Dickson, 21 A.D.3d 646, 647, 799 N.Y.S.2d 657 ).

"In addition, the testimony of the [witness] concerning a conversation between [an] accomplice and defendant did not violate defendant's right of confrontation because the statements of the ... accomplice during that conversation were not themselves testimonial in nature" ( People

57 N.Y.S.3d 286

v. Robles, 72 A.D.3d 1520, 1521, 899 N.Y.S.2d 780, lv. denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 ). Although the United States Supreme Court "le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial’ " ( Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 ), the Court wrote that such a statement must be " ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact’ " ( id. at 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 ). A "casual remark to an acquaintance," such as the statements at issue, does not suffice (id. ; cf. People v. Goldstein, 6 N.Y.3d 119, 129, 810 N.Y.S.2d 100, 843 N.E.2d 727, cert. denied 547 U.S. 1159, 126 S.Ct. 2293, 164 L.Ed.2d 834 ).

Contrary to defendant's further contention, the court properly overruled his hearsay objections to the admissibility of those statements. The codefendant's statements to the witness were admissible as statements against penal interest (see generally People v. Shabazz, 22 N.Y.3d 896, 898, 977 N.Y.S.2d 141, 999 N.E.2d 504 ), and as the statements of a coconspirator in the furtherance of the conspiracy (see Robles, 72 A.D.3d at 1521, 899 N.Y.S.2d 780 ; see generally People v. Caban, 5 N.Y.3d 143, 148, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).

Although the court erred in denying, without a Mapp hearing, defendant's midtrial motion to suppress a travel itinerary seized from him by police officers when they initially spoke with him at the Syracuse airport, any error in that regard is harmless (see People v. Massimi, 191 A.D.2d 969, 969, 595 N.Y.S.2d 341 ; see also People v. Lazcano, 66 A.D.3d 1474, 1475, 885 N.Y.S.2d 838, lv. denied 13 N.Y.3d 940, 895 N.Y.S.2d 330, 922 N.E.2d 919 ; People v. Michael A.D., 289 A.D.2d 1036, 1037, 736 N.Y.S.2d 212 ). The evidence is cumulative of other properly admitted

151 A.D.3d 1681

evidence that defendant was planning on leaving the country and flying to Puerto Rico, and there is no reasonable possibility that the admission of the travel itinerary contributed to defendant's conviction (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

Defendant failed to preserve for our review his contention that he was deprived of a fair trial by prosecutorial misconduct on summation because he failed to object to any of those alleged improprieties (see People v. Young, 100 A.D.3d 1427, 1428, 953 N.Y.S.2d 790, lv. denied 20 N.Y.3d 1105, 965 N.Y.S.2d 802, 988 N.E.2d 540 ; People v. Rumph, 93 A.D.3d 1346, 1347, 940 N.Y.S.2d 769, lv. denied 19 N.Y.3d 967, 950 N.Y.S.2d 119, 973 N.E.2d 217 ). In any...