that the admission amounted to harmless constitutional error.
Detective Sica read both petitioner's statement and Torres's
similar statement into evidence. The judge gave a limiting
instruction that the statement made by each defendant was binding
only on him and was not to be considered with respect to his
"Where a nontestifying codefendant's confession incriminating
the defendant is not directly admissible against the defendant,
the Confrontation Clause bars its admission at their joint trial,
even if the jury is instructed not to consider it against the
defendant, and even if the defendant's own confession is admitted
against him." Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct.
1714, 95 L.Ed.2d 162 (1987) (internal citations omitted). A
codefendant's statement is inadmissible against the defendant
even if it is substantially identical to the defendant's own
confession. See Samuels v. Mann, 13 F.3d 522, 526 (2d cir.
1993) (citing Cruz, 481 U.S. at 193, 107 S.Ct. 1714), cert.
denied, 513 U.S. 849, 115 S.Ct. 134, 130 L.Ed.2d 85 (1994).
As trial error, violations of the Cruz rule are subject to
harmless error analysis. Samuels, 13 F.3d at 526 (discussing
Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d
353 (1993)). In that regard, conclusive effect is not to be given
to the reviewing court's view of the evidence, but rather to "the
impact that the improperly admitted evidence had or reasonably
may have had upon the minds of the jury." 13 F.3d at 528. To
conclude that a Cruz error is harmless, it need not be found
that the improperly admitted evidence had no effect at all in the
jury's mind; it need only be found that the effect on the
determination of the jury's verdict was not substantial and
injurious. Id.; see Latine v. Mann, 25 F.3d 1162, 1167 (1994),
cert. denied, 514 U.S. 1006, 115 S.Ct. 1319, 131 L.Ed.2d 200
The factors relevant to the determination of whether an error
is harmless include "the importance of the . . . testimony in the
prosecution's case, whether the testimony was cumulative, the
absence or presence of evidence corroborating or contradicting
the testimony, and the overall strength of the prosecution's
case." Latine, 25 F.3d at 1167-68. "In cases in which the
government demonstrates that the other, properly admitted
evidence sufficiently proves the elements of the crime for which
the defendant was convicted, and there is no reasonable
probability that the [Confrontation Clause] violation infected
the verdict. [this circuit has] affirmed the conviction despite
the confrontation clause violation." United States v. Kyles,
40 F.3d 519, 527 (2d Cir. 1994), cert. denied, 514 U.S. 1044, 115
S.Ct. 1419, 131 L.Ed.2d 302 (1995); Samuels, 13 F.3d at 527-28.
The most significant factor in determining whether a Cruz error
is harmless is "the weight of the prosecution's case against the
defendant." Samuels, 13 F.3d at 526. To evaluate this factor,
the court must consider the weight of the evidence "stripped of
the Cruz error." Id. at 527; see also Cotto v. Mann,
991 F. Supp. 124, 131 (E.D.N.Y. 1998).
Under the prosecutor's theory of the case, petitioner was
identified by an eyewitness as the shooter. The eyewitness who
recognized both petitioner and Torres had known both individuals
for five years. Another witness, Angel Ruiz, as well as the
eyewitness Veliz, provided a motive when they testified that
there had been conflict between the people exiting the party and
a group with which the defendants associated. Petitioner's
statement acknowledged that he was in the vehicle from which the
shot was fired. Torres's statement was not significantly more
inculpatory of petitioner than petitioner's own statement, and
the prosecutor in his summation made no claim that it was. Thus,
there was weighty evidence to support petitioner's conviction and
probability that the Confrontation Clause error infected the
The recent case of Cotto v. Mann, 991 F. Supp. 124, 131
(E.D.N.Y. 1998), illustrates the difference between this case and
one where a Cruz violation was not harmless. In Cotto, the
wrongly admitted statement of a codefendant had a significant
impact on jury deliberations because it was substantially
different from the habeas petitioner's own statement. There, the
petitioner had indicated that he was unaware of the substance of
a conversation that occurred between his codefendants. The effect
of his statement was to convey the impression that he did not
have the intent to commit the crime. As Judge Ross noted, the
codefendant's statement "provided the sole proof at trial of
petitioner's agreement to commit the robbery." Id. at 132.
Moreover, Judge Ross found, not only was the codefendant's
wrongly admitted statement the sole proof against the petitioner,
but "the petitioner's statement by itself [does not] establish
that he participated in the commission of an attempted robbery."
Id. at 134. Here, in contrast, Torres's statement, which was
very similar to petitioner's, did not provide the sole proof at
trial of an essential element of the crime of which petitioner
was found guilty.
Supplemental Reply Brief
Finally, petitioner's claim regarding the Appellate Division's
denial of leave to file a supplemental reply brief raises no
federal Constitutional issue.
The petition for a writ of habeas corpus is denied.