People v. Safian

• Decision Date: 06 December 1978
• Citation: 385 N.E.2d 1046,46 N.Y.2d 181,413 N.Y.S.2d 118
• Parties: , 385 N.E.2d 1046 The PEOPLE of the State of New York, Respondent, v. David SAFIAN, Appellant. The PEOPLE of the State of New York, Respondent, v. Robert F. MINER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 118

413 N.Y.S.2d 118

46 N.Y.2d 181, 385 N.E.2d 1046

The PEOPLE of the State of New York, Respondent, v. David SAFIAN, Appellant.

The PEOPLE of the State of New York, Respondent, v. Robert F. MINER, Appellant.

Court of Appeals of New York.

Dec. 6, 1978.

Herman Kaufman, Lewis R. Friedman and Jack T. Litman, New York City, for appellant David Safian.

Richard Goldsweig, Yonkers, for appellant Robert F. Miner.

Carl A. Vergari, Dist. Atty. (Janet Cunard, White Plains, of counsel), for respondent the People of the State of New York.

BREITEL, Chief Judge.

Defendants David Safian and Robert Miner appeal from affirmances of their convictions for the murder of Safian's wife by Miner, a killer unknown to the wife and confessedly hired by Safian, and for possession of a weapon. At their joint trial, the confession of each defendant was admitted, with repeated and explicit instructions by the Trial Justice that each defendant's confession was to be considered against the confessing defendant only, and not against the codefendant.

The issue is whether, despite the substantial identity of the two confessions, failure to grant a severance resulted in a trial hopelessly tainted by the admission of the codefendants' confessions (see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476).

There should be affirmances as to both defendants. Each defendant's confession contained the same material facts. There was, therefore, no significant risk that either defendant would be improperly prejudiced by admission of his codefendant's confession (see People v. McNeil, 24 N.Y.2d 550, 552-553, 301 N.Y.S.2d 503, 504, 249 N.E.2d 383, 384, remittitur amd. 25 N.Y.2d 888, 304 N.Y.S.2d 5, 251 N.E.2d 144, cert. den. Sub nom. Spain v. New York, 396 U.S. 937, 90 S.Ct. 282, 24 L.Ed.2d 236).

There is no dispute in this court, as there was none in the Appellate Division, 59 A.D.2d 20, 396 N.Y.S.2d 432, that defendant Miner suffered no significant prejudice from admission of his codefendant's confession. It is the case of defendant Safian that has provoked dissent, both in the Appellate Division and in this court. Yet the same principles apply, and those principles permit, and require, affirmance of Safian's conviction as well.

Defendant David Safian, separated from his wife for a year, unsuccessfully sought reconciliation in April, 1975. When he was rebuffed, he told his wife that their daughter, one of her two children, would eventually live with him and that, according to the testimony of a friend of the wife, the daughter "would not live with Debbie", the wife.

Meanwhile, on March 5, 1975, defendant Safian, aged 27, had met Robert Miner, aged 16, who was then, for no known reason, kicking and damaging Safian's automobile. Safian had Miner arrested, but Miner later apologized and had the car repaired. Still later, Safian met Miner in a bar and, as Safian confessed in writing, told him that he was "looking for some crazy guy to take care of this girl I know". Miner, eager to buy a new motorcycle, evidently met Safian's requirements, and asked for $1,500. The two ultimately struck a bargain on a price of $1,000. At least one witness described a meeting in a bar between Safian and Miner on April 24, 1975. Then, in preparation, Safian showed Miner his wife's home, the restaurant at which she worked as a waitress, and her automobile. All of this, except for the dates, comes from Safian's written confession.

On May 2, 1975, eight days after Safian and Miner had been seen together in a bar, Deborah Safian was stabbed 21 times in front of her home. A neighbor heard her screams for help, and then saw her fall. A man on a motorcycle, wearing a head and face helmet, was seen leaving the scene. Mrs. Safian was immediately taken to a hospital, where she soon died.

Evidence was introduced to establish that the motorcycle on which the assailant fled resembled one owned by Miner. Blood was found on Miner's motorcycle. Also, Miner owned a jacket similar to the one worn by Mrs. Safian's killer. The jacket too was stained, with blood of the same type as the victim's. This certainly suffices with respect to Safian's culpability to tie Miner in as the person who committed the crime on behalf of Safian.

Actually even the evidence last discussed was not essential to establish that the crime had been committed at Safian's behest. Safian's confession did that. The statute, a restatement of the long-established law in this State, provides only: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed" (CPL 60.50; e. g., People v. Cuozzo, 292 N.Y. 85, 91-93, 54 N.E.2d 20, 23, 24 (Desmond, J.), and cases there collected arising under the predecessor statute to CPL 60.50). Thus it has always been true that a confession may provide all the necessary proof of defendant's culpability, and the statute only requires that the confessed crime be proven to have occurred by independent evidence without any other connection with the defendant or his confession.

Moreover, there is the proximity in time between Safian's admitted meetings with Miner, one supposedly in late April, 1975, and the occurrence of the May 2 homicide they had discussed in those meetings. There is also the coincidence of place, Safian having said that he had pointed out to Miner the victim's residence and automobile. In short, if, as is not the case, the confession required "corroboration" beyond the fact of the corpus delicti, there was ample evidence to "corroborate" the confession.

But the end is not yet. After the murder had been committed, Miner, according to Safian's confession, met Safian "a couple of times" in the same bar in which the agreement to kill had been made. Miner asked Safian for his money and sought to make an appointment to arrange delivery. Before payment could be made, however, Safian confessed to the police. While others may raise doubts whether the intentional homicide of the wife was attributable to Safian's agreement with Miner, Safian had no such doubts. That was shown by his description of his posthomicide meetings with Miner, in which Miner asked to be paid. And, as discussed earlier, a confession analytically need not be "corroborated" but only supported by an independently proven corpus delicti (People v. Cuozzo, supra).

Thus, on the evidence admissible against Safian, who did not testify and offered no evidence after the People rested, the proof was overpowering that Safian had hired Miner to kill his wife, and that she had in fact been intentionally killed. Entirely superfluous to certitude as to Safian's guilt was any material contained in Miner's confession, and admitted only against Miner. ¹

Of course, it is now established law that when introduction in evidence of the extrajudicial confession of a codefendant not testifying and not subject to cross-examination adds substantial weight to the prosecution's case against another defendant, that defendant is denied his constitutional right to confrontation (Bruton v. United States, 391 U.S. 123, 127-128, 88 S.Ct. 1620, 20 L.Ed.2d 476, Supra ). (See, also, Nelson v. O'Neil, 402 U.S. 622, 628, 91 S.Ct. 1723, 29 L.Ed.2d 222, noting that the Supreme Court has never extended Bruton beyond its specific holding. The statement is still true.) The rule is based on the assumption that even when limiting instructions are given, jurors may not be capable of ignoring or willing to ignore portions of a codefendant's confession that inculpate another defendant (Bruton v. United States, supra, 391 U.S. esp. pp. 135-136, 88 S.Ct. 1620).

There are, of course, means of avoiding the prejudice contemplated in the Bruton case. Thus, when confessions of codefendants are involved, severance and separate trials will sometimes be appropriate and even mandatory (see CPL 200.40, subd. 1). In other cases, redaction of offending portions of the confession or confessions may provide a satisfactory solution (see People v. Boone, 22 N.Y.2d 476, 485-486, 293 N.Y.S.2d 287, 294-295, 239 N.E.2d 885, 889-890, cert. den. Sub nom. Brandon v. New York, 393 U.S. 991, 89 S.Ct. 464, 21 L.Ed.2d 455). Neither solution, however, is ideal, for redaction is not always possible, and severance creates problems of its own, not the least of which is duplication of effort on the part of court, prosecutor, and witnesses.

The Bruton rule is not absolute, nor should it be. It is a rule based on the probability of prejudice by inadmissible "hearsay", and when that probability is negligible, as in this case, admission of a codefendant's confession, subject of course to proper instructions, does not require reversal (see Harrington v. California, 395 U.S. 250, 253-254, 89 S.Ct. 1726, 23 L.Ed.2d 284; Brown v. United States, 411 U.S. 223, 231-232, 93 S.Ct. 1565, 36 L.Ed.2d 208; Schneble v. Florida, 405 U.S. 427, 429-432, 92 S.Ct. 1056, 31 L.Ed.2d 340; see, also, People v. Baker, 26 N.Y.2d 169, 172-173, 309 N.Y.S.2d 174, 176-177, 257 N.E.2d 630, 631-632).

This court, in accordance with these principles, has squarely held that "where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his codefendants", the Bruton rule does not require reversal of a conviction (People v. McNeil,24 N.Y.2d 550, 552, 301 N.Y.S.2d 503, 504, 249 N.E.2d 383, 384, Supra; see People v. Benzinger, 36 N.Y.2d 29, 34-35, 364 N.Y.S.2d 855, 858-859, 324 N.E.2d 334, 336-337; see, also, People v. Payne, 35 N.Y.2d 22, 27-28, 358 N.Y.S.2d 701, 705-706, 315 N.E.2d 762, 765-766). A similar rule has been applied in the Second Circuit Court of Appeals (see, e. g., United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 48-49, cert. den. 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102; United States ex rel. Catanzaro v. Mancusi,404 F.2d 296, 300, cert. den. 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123). It...