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January 16, 1998

MILTON COTTO, Petitioner, against LOUIS MANN, Superintendent of Shawangunk Correctional Facility, Respondent.

The opinion of the court was delivered by: ROSS

 ROSS, United States District Judge:

 In this case, the court is called upon to determine whether the unconstitutional admission of statements at trial made by the petitioner's non-testifying co-defendant was merely harmless error or was sufficiently prejudicial to necessitate the grant of a writ of habeas corpus. See Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968); Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987). In making this determination, the court applies the standard of review set out in Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993), and thereunder reviews petitioner's conviction to determine whether the Bruton error "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 638.


 On October 12, 1982, Milton Scher and Rose DeGennaro were shot and killed in a Brooklyn pharmacy. Scher, who was 73 years old, was the store's pharmacist; DeGennaro, who was 34 years old, was a customer. Three individuals were charged with and convicted of the killings: Kareem Abdul Latif (a/k/a George Suarez), Robert Rodriguez, and the petitioner, Milton Cotto. A fourth person, Michael Donnes, was also alleged to have participated in the crimes, but was never apprehended. At the time of the incident, Latif was 29 years old, Rodriguez was 19 years old, and petitioner was 17 years old.

 The investigation that culminated in the arrest of these individuals was led by Detective Louis Scarcella and Investigator William Shields, who were assigned to the case on the day of the shootings. A few weeks later, Detective Scarcella learned the whereabouts of two allegedly missing persons, Sandra Nieves and Nancy Santiago, and brought them to the police station. There, Nieves and Rodriguez made statements implicating Latif, Rodriguez, Donnes, and petitioner in the pharmacy murders. The following day, Milton Cotto, accompanied by his mother, voluntarily came to the station and made a statement to Detective Scarcella. See Pretrial Hearing Trans. (Scarcella: 30-32). Rodriguez also made a statement to Scarcella that day. Both Cotto and Rodriguez made subsequent statements to polygraph examiner Joseph Ponzi, and audiotaped statements to Assistant District Attorney Philip Guzman. Latif, meanwhile, was located by Investigator Shields at Kingsborough Psychiatric Center, and chose not to give a statement to law enforcement officials.

 On November 1, 1983, Justice Edward K. Pincus of the New York State Supreme Court, Kings County, conducted a pre-trial hearing to determine, inter alia, whether the defendants should be tried together in a single proceeding. Despite the fact that the state's case relied heavily on the statements of Cotto and Rodriguez, and the fact that the defendants' defenses were mutually antagonistic, *fn1" Justice Pincus ruled that a joint trial would not prejudice any of the defendants. According to Justice Pincus, there was "no question that the two defendants [Cotto and Rodriguez] could be tried together" since their "statements are virtually identical." See Pre-trial Hearing Trans., at 538. Justice Pincus also found no Bruton issue requiring severance for Latif. Co-defendant Latif's conviction was subsequently overturned by the Appellate Division *fn2" for a violation of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). See People v. Latif, 135 A.D.2d 736, 522 N.Y.S.2d 638 (2d Dept. 1987).

 At trial, the evidence established that the following events transpired on October 12, 1982. Petitioner, Donnes and Rodriguez were together with Latif in Latif's apartment early that afternoon, having stayed there the previous night. A conversation took place in which Latif commented that he wanted to "break Doc's neck," referring to Scher, the pharmacist. The defendants then traveled together to the pharmacy, where Latif spoke to Scher, while Rodriguez, Donnes, and Cotto waited nearby. After approximately one half hour, Ms. DeGennaro entered the pharmacy, and Latif suggested, most likely in jest, that the woman was having an affair with "Doc." The pharmacist, Scher, asked Latif if he was "ready to pay." At this point, petitioner left the pharmacy to urinate, and then returned to the store. A little while later, Latif forced Scher, and then DeGennaro, who was still in the store, into the back area and shot them. The evidence at trial indicated that Rodriguez assisted Latif by grabbing DeGennaro and dragging her into the back of the store. Upon hearing the shots, petitioner left the store and ran home. The other defendants followed.

 On December 2, 1983, petitioner was convicted of two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25[3]) and one count of Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110/125.20[2]). Co-defendants Rodriguez and Latif were convicted of four counts of Murder in the Second Degree and one count of Attempted Robbery in the First Degree, and Latif was additionally convicted of one count of Criminal Possession of a Weapon in the Second Degree. Rodriguez and Latif were sentenced to two consecutive terms of 25 years to life. Petitioner is currently serving two terms of seventeen years to life for the murder counts, and one additional term of five to fifteen years on the attempted robbery count. All three of petitioner's terms were set to run concurrently.

 In 1987, the Supreme Court decided Cruz v. New York, 481 U.S. 186, 95 L. Ed. 2d 162, 107 S. Ct. 1714 (1987), which strengthened Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), by abolishing the "interlocking confessions" exception to the ban on the receipt of a non-testifying co-defendant's confession. The Second Circuit has held that the holding of Cruz applies retroactively. See Samuels v. Mann, 13 F.3d 522, 526 (2d Cir. 1993); Graham v. Hoke, 946 F.2d 982, 994 (2d Cir. 1991).

 In petitioner's appeal to the Appellate Division, he raised the Cruz issue, arguing that he was deprived of his rights to confrontation and due process by the admission of the interlocking statement of a non-testifying co-defendant which implicated him more deeply than did his own statement. Petitioner also raised three other claims: 1) that the evidence was insufficient to prove that he acted in concert with Latif and Rodriguez, 2) that he received ineffective assistance of counsel, and 3) that petitioner's sentence was excessive, given his age, learning disabilities, strong family ties, and lack of a criminal record. Petitioner's conviction and sentence were affirmed by the New York State Supreme Court, Appellate Division, Second Department, in a decision dated September 23, 1991. See People v. Cotto, 176 A.D.2d 291, 574 N.Y.S.2d 225 (2d Dept. 1991). The Appellate Division found that "the record established that before the robbery, the defendant was aware that a robbery of the drugstore was intended and had agreed to act as a lookout during its commission." People v. Cotto, 176 A.D.2d at 292. On December 12, 1991, petitioner was denied leave to appeal to the New York State Court of Appeals. See People v. Cotto, 79 N.Y.2d 826, 580 N.Y.S.2d 206, 588 N.E.2d 104 (1991).

 Having exhausted his state remedies, petitioner pro se filed this application for a writ of habeas corpus on June 2, 1995, pursuant to 28 U.S.C. § 2254 et seq. (1996). The court appointed counsel to assist petitioner in his habeas petition, and with the assistance of counsel the petitioner filed a reply brief addressing the Bruton/Cruz issue.

 A. The Evidence Against Petitioner

 Petitioner does not dispute the above described account of the facts, and concedes that he was present at the pharmacy when the shootings occurred. The issue facing the jury with regard to petitioner Cotto was not whether he was present at the crime scene, but whether he possessed the necessary mens rea to support a conviction for attempted robbery, which also served as the base offense underlying his conviction for felony murder. The sole evidence presented to the jury regarding petitioner's participation in the crime were statements made by co-defendant Rodriguez and by Cotto himself. The court thus turns to an examination of these statements.

 1. Cotto's statements

 Petitioner gave a series of five statements to investigators, the first of which was made to Detective Scarcella. At trial, Scarcella recounted the substance of this statement as follows:

"On October 12th, 1982, between three and four o'clock, we went into the drugstore, me Ash" -- meaning Rodriguez -- "Michael and Kareem. Kareem was talking to Doc," meaning Mr. Scher. "A few minutes went by. People came in and out. Kareem had a list of stuff he wanted to buy. About a half hour went by. A lady came in. She was the Doc's playmate" meaning DeGennaro. "Kareem said the girl was having an affair with Doc. Doc asked Kareem, "are you ready to Pay?" I walked out of the store to take a piss on 52nd Street. I came back and said, "Why so many cops?" I saw the police cars. Now I was standing near the door of the drugstore. I was just about to leave. I heard the shots, three. I got scared and started walking across the street. A girl saw me, she knows me. I got to 51st Street and started running down to Old New Utrecht Road. I thought, "Who did this?" Then I heard them yell at me, "Run, run." I looked back and saw Michael and Ash, meaning Rodriguez. I didn't see Kareem. Me, Michael and Ash went to my house. As we came to 43rd Street, we met Kareem coming from 44th Street on Dahill Road. Then we all went to my hallway and we started talking. . . I wanted to go to the police. I didn't think Michael and Ash, meaning Rodriguez, were involved. I was raised with them, Michael and Rodriguez. I was scared. I know one of them did it. It was Kareem."

 Trans. (Scarcella: 202-03).

 Later on the day that he gave his first statement, petitioner was asked to give a statement to Detective Joseph Ponzi, a polygraph examiner. As Ponzi's testimony indicates, that statement was substantially identical to the statement petitioner had given to Scarcella. Ponzi then told petitioner that he planned to administer a polygraph examination in which he would ask petitioner four questions: if he had planned the robbery with co-defendant Latif, if he had seen Latif shoot Scher and DeGennaro, if he had seen Latif take out a gun in the drugstore, and if he was holding back information regarding the shooting. Petitioner indicated that he would be uncomfortable answering no to these questions, and then proceeded to give a second statement to Ponzi which added further details about the events preceding the crime. Assistant District Attorney Guzman then took two audiotaped statements from petitioner, the second and more detailed of which was recorded at 1:00 p.m. on October 28th. A.D.A. Guzman began his interrogation of petitioner by focusing on the events preceding the robbery. As petitioner recounted, he, Rodriguez and Donnes were at the apartment of Latif, and Rodriguez, Donnes and Latif were having a conversation in the middle of which petitioner entered:

I was taking a shower, first, I just came out of the showers and Kareem had asked Michael is he ready and Michael gave him a funny face and . . . I'm curious . . . I'm curious what, you know, they were talking about. . . . I heard, he had, he had asked Michael if I was ready. . . . And I was curious and he gave him a funny face. Michael gave them a funny face. I don't know and I'm curious, you know, when to find out what they're talking about.

 Petitioner interjected: "yeah. Man, I'd do anything you wanted to do, you know." Respondent's Exh. G (Trans. of Audiotaped Interview, Tape A1974) ("A1974"), at 6-7. Petitioner stated that at this point he had no idea what Latif meant in asking if petitioner "was ready." Id. Then, according to petitioner, "Kareem said I'm gonna go, go to the drugstore, us four and he got a list of things what he wants. Then after that, after he gets all the stuff, he gonna crack Doc's neck." Id. Petitioner stated that the three others took Kareem's statement "like a joke." Id. "I said, no, I thought inside, you know, this guy, you know, he's playing around, you know. I didn't expect him to, to say anything like that." Latif then told petitioner to get dressed and ready to go, but petitioner still "thought he was joking around," and therefore did "nothing. We just took it like a joke." Id. Reiterating that he thought Latif was merely joking, petitioner then described getting dressed and taking a bus to the pharmacy. He denied that anyone said "anything like yeah, we're ready or we're not ready." Id. at 12.

 During the interrogation, petitioner stated that, because Latif "carries it every day," he assumed Latif had a gun on this occasion. But petitioner did not actually see Latif with a gun on the afternoon prior to the shootings, and his statement gave no indication that he was specifically aware prior to entering the pharmacy that Latif was armed, or that he understood that Latif planned to use a weapon at the pharmacy. According to petitioner, nothing more was said about the purpose of the trip. "We were just talking religious words. . . . you know, joking around, us three. It was me and Michael cause we just joke around like that." Id. at 11.

 Once at the pharmacy, petitioner began to get nervous, "cause I knew that this guy's really serious. I wasn't really nervous but I was, you know, this guys gonna really do that, you know, putting it in my mind." Id. at 13. Petitioner explained that he got up to look outside, not to act as a lookout, but "to see [if] my girlfriend was passing by." Id. Petitioner reasoned that if he spotted his girlfriend, or another friend outside, he would have a good excuse to leave the pharmacy. Petitioner then stated that Latif "told me stay in the door, don't let nobody in." Id. at 14.

 At this point in the interview, A.D.A. Guzman asked petitioner a series of questions apparently hoping to establish that petitioner consciously acted during the crime as a "lookout."

Q. Is, is that what you were doing? Were you standing by the door?
A. Yeah.
Q. Okay. So what happened then?
A. I, I wanted to get out of the store.
Q. Yeah, how long, for how long were you standing up like, acting like a lookout?
A. No, it's not long like fifteen minutes.
Q. You were standing there for fifteen minutes?
A. Yeah. (inaudible).
Q. Being the lookout?
A. Right.
Q. Okay. So what happened then?
A. I wanted to, I wanted to run out of the store. I didn't wanted to get involved. And, and the way they looked, you know, Michael's and Robert's face, ...

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