People v. Rosario

• Decision Date: 11 November 1980
• Parties: , 415 N.E.2d 962 The PEOPLE of the State of New York, Appellant, v. William ROSARIO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 973

434 N.Y.S.2d 973

51 N.Y.2d 889, 415 N.E.2d 962

The PEOPLE of the State of New York, Appellant, v. William ROSARIO, Respondent.

Court of Appeals of New York.

Nov. 11, 1980.

Eugene Gold, Dist. Atty. (Timothy G. O'Connor, Brooklyn, of counsel), for appellant.

Freda S. Nisnewitz, Brooklyn, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, 70 A.D.2d 956, 417 N.Y.S.2d 767.

One Rafael Cruz and defendant were indicted together. At a pretrial hearing on Cruz motion to suppress an inculpatory statement allegedly made by him which also implicated defendant, Cruz testified and denied making the statement. Defendant's attorney declined to cross-examine Cruz at the hearing. The court denied the suppression motion as well as defendant's later motion for a severance. At the subsequent joint trial Cruz statement implicating defendant was admitted into evidence without redaction over the objection of defendant. Neither Cruz nor defendant took the witness stand. Defendant's conviction on the verdict of the jury was reversed by the Appellate Division and a new trial granted on the ground that it was error, under the principles of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, to have admitted Cruz statement.

The opportunity for cross-examination at a pretrial suppression hearing does not satisfy a defendant's constitutional right of confrontation (People v. Berzups, 49 N.Y.2d 417, 426, 426 N.Y.S.2d 253, 402 N.E.2d 1155). A fortiori is this so where, as here, the confessing codefendant denies making the alleged statement thereby removing all reason for cross-examination of the witness.

COOKE, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

Order affirmed in a memorandum.