On February 20, 1987 petitioner moved in Supreme Court, Kings
County, under N.Y. C.P.L. § 440.10, claiming that he had been
denied the effective assistance of appellate counsel. The
motion was denied on May 7, 1987.
On July 10, 1987 petitioner made a second motion under
Section 440.10, contending that the United States Supreme Court
decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95
L.Ed.2d 162 (1987), was applicable to his case and should be
retroactively applied. The Cruz case held that it was error to
admit a codefendant's confession inculpating another defendant
even though that defendant had made an "interlocking"
Justice Ronald A. Zweibel denied the motion, deciding that
while the Supreme Court decision in Cruz should be
retroactively applied and petitioner's right to confrontation
had been violated, the error was harmless beyond a reasonable
doubt. 140 Misc.2d 417, 531 N.Y.S.2d 172 (1988).
The Appellate Division affirmed the denial of the motion,
stating, among other things, that petitioner's confession was
detailed and comprehensive and "satisfactorily explained his
part in the crime" and that "in addition" petitioner "did not
repudiate his confession, and he was identified in court by a
witness to the crime." The court held that any error in
admitting the codefendant's interlocking statements was
harmless beyond a reasonable doubt. 158 A.D.2d 714, 552
N YS.2d 162 (2 Dept. 1990).
On May 1, 1990 the Court of Appeals denied petitioner's
application for leave to appeal. 76 N.Y.2d 735, 558 N.Y.S.2d
897, 557 N.E.2d 1193 (1990).
In this court petitioner makes several arguments, all of
which were exhausted in the state courts and only one of which
has any merit, namely, the contention that petitioner's
confrontation rights under the Sixth and Fourteenth Amendments
were violated by the admission Stephens' confession.
The only questions are whether the Supreme Court decision in
Cruz v. New York, supra, decided after the trial in this case
and after the direct appeal from the judgment of conviction,
should be retroactively applied and, if it is, whether
admission of Stephens' statement was harmless error.
It would serve no purpose to rehearse the history of the
Supreme Court decisions discussing retroactive application of
new rulings to convictions challenged by habeas corpus
petitions. The law is well summarized by Judge Stanton in
Reddy v. Coombe, 730 F. Supp. 556, 565-66 (S.D.N.Y. 1990), aff'd
on other grounds, 916 F.2d 47 (2d Cir. 1990).
For reasons stated by Judge Stanton, the court concludes that
Cruz, whether it be a new or an old ruling, should apply to
this case, and turns to the question whether the error was
Even if Cruz were to be deemed "old" law, petitioner
preserved the issue of whether Stephens' statement was
admissible. Before trial petitioner's attorney moved to sever
his case from that of Stephens, arguing that the confessions
did not interlock under the then rule in New York State courts
making interlocking confessions admissible.
As the Supreme Court in Cruz said, the admission of a
codefendant's confession corroborating the other defendant's
confession significantly harms that defendant's case by making
less plausible any contention that his own confession was
coerced or otherwise unreliable. Moreover, because the judge
had to charge that Stephens' statement could be used only
against Stephens, petitioner's counsel was as a practical
matter placed in a dilemma in determining whether to cast doubt
on Stephens' statement. Had he done so the jury might have
construed his efforts as an implied admission that that
statement bore on his client's case.
It is true that in addition to the two confessions there was
significant evidence showing petitioner to be one of those
responsible for the crime. But there is no apparent basis for
the conclusion by the Appellate Division that petitioner "did
not repudiate his confession." Surely that court was not
suggesting that petitioner should have taken the stand. He did
But his counsel by no means conceded that petitioner's
statement contained the truth.
In the cross-examination of both policemen who took the
statement, trial counsel sought to cast doubt on whether the
confession was voluntarily, intelligently and knowingly made.
Counsel asked the jury "to question the voluntariness and the
truth of what is in here [in the statement] before you reach
Whatever theoretical effect the judge's charge to consider
Stephens' statement only against him may have had, that effect
was wholly dissipated by the prosecutor. In his summation,
without incurring an admonition from the trial judge, he
invited the jury to consider Stephens' statement against
petitioner by emphasizing that both defendants had made
statements and that they matched each other. He stated "So,
what you have here are two men fully informed of their rights
under the law and they make statements. They make statements
that, surprisingly enough, match each other."
In addition, while the confessions of both defendants agreed
as to many details, Stephens' account was more detailed and
added a double hearsay statement by the third participant in
the alleged crime, Darryl Green, who, Stephens reported, said
to petitioner "You killed him."
At 11:05 A.M. of the day the jury reached a verdict they
asked the court to define "reasonable doubt." The trial judge
then restated his charge on that matter. At 1:00 P.M. the jury
requested copies of the statements of the two defendants. The
court provided the statements to the jury. At 2:30 P.M. it
returned with a verdict. Thus the very last matters on which
the jury focused before reaching a verdict were the statements
of the two defendants. So far as the record shows these were
the only exhibits the jury saw.
This court concludes from all the evidence that there is a
reasonable possibility that the improperly admitted evidence
contributed to the conviction. Schneble v. Florida,
405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972); Anderson
v. Smith, 751 F.2d 96, 105-106 (2d Cir. 1984).
The admission of Stephens' statements violated petitioner's
Sixth Amendment right to confront a witness against him. That
error was not harmless. The petition is granted, and the court
orders the release of petitioner unless the state begins new
trial proceedings against him within 90 days from the date of
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