NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 20, 2009
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT
ELVIS MARTIN, DEFENDANT-APPELLANT.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered November 1, 2006, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, unanimously affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Buckley, Acosta, Freedman, JJ.
Case No. 62277C/05
When the court ordered a joint trial over defendant's objection, and permitted the People to introduce the non-testifying co-defendants' statements, without redacting references to defendant, this was error under Bruton v United States, 391 US 123 ). However, we find the error harmless (see People v Crimmins, 36 NY2d 230 ) in that there was overwhelming evidence of defendant's guilt based upon the testimony of his cousin. The references to defendant in the co-defendants' statements could not have affected the verdict. These brief references merely placed defendant at the scene, and his presence at the scene was essentially consistent with the defense theory of the case. Defendant's argument that the court should have delivered a limiting instruction is unpreserved and we decline to review it in the interest of justice. With regard to defendant's independent Confrontation Clause claim under Crawford v Washington (541 US 36 ) based on the testimonial nature of the statements (see generally United States v Lung Fong Chen, 393 F3d 139, 150 ), we likewise find any error harmless.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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