Posted On: May 7, 2012 by Stephen Bilkis

Court Erred on Motion for Severance of Actions

A manager was with another employee when they were on route in a company van to one of its nearby stores with a bag containing the cash receipts. A New York Criminal Lawyer said after noticing that a vehicle in front of his van pulled off onto the shoulder of the road, the van made a strange noise and lost power. As he pulled onto the shoulder, the manager observed the previously stopped vehicle reenter the roadway and stop in front of his stalled van. Two individuals (or defendants) in dark clothes wearing masks and brandishing shotguns approached the van from both sides and shouted orders to the manager and his companion. The manager, seeing the weapons, took the bag containing the cash receipts and held it out the open window. The robbers took the money, duct-taped the manager and the employee companion side-by-side on the floor of the van, and drove with them at gunpoint. When the robbers fled, the manager and his employee companion were left in the van. Ultimately, they acquired police assistance.

Notwithstanding an extensive investigation, police authorities were unable to solve the robbery until they received a telephone call from an individual (or the caller), whom they later identified. The caller met with the investigators and provided both the details and names of three individuals involved in the robbery.

Over the next few months, the investigation led to defendants' arrests.

Defendants were charged in a 12-count indictment with various crimes arising from the robbery of two employees.

At the trial of defendants, the People offered, inter alia, the testimony of 29 witnesses, many of whom testified concerning confessions or admissions made by one or more defendant.
None of the defendants testified at trial.

The jury returned a verdict convicting defendants of two counts of robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the third degree and two counts of unlawful imprisonment in the second degree.

Each was sentenced and only two of the defendants appeal.

A New York Criminal Lawyer said defendants contend that pursuant to Bruton v United States, their rights under the 6th Amendment of the U.S. Constitution were violated by the introduction of testimony detailing a confession or admission of a co-defendant.

In Bruton v United States, the court held that a deprivation of a defendant's rights under the Confrontation Clause takes place if his or her non testifying co-defendant's confession names him or her as a participant in the crime and such confession is introduced at their joint trial; a limiting instruction given to the jury will not be curative. A New York Sex Crimes Lawyer said in contrast, no Bruton violation will be found to occur when the confession is not incriminating on its face but becomes so only when linked with other evidence introduced at trial. An alleged violation of the Confrontation Clause is always subject to a harmless error analysis.

The court finds no Bruton violation of the admissions made. The statements were not facially incriminatory.

Also unavailing is defendants' assertion that their statements to one individual should not have been admitted because, at the time that they made such statements, the aforesaid individual was acting as an agent and confidential informant for the police. A New York Drug Possession Lawyer said the Court properly concluded that such individual acted independently of the police and provided information on his own initiative. While the disclosure to authorities might have been precipitated by self-interest, it was unsolicited and without promise or inducement. For these reasons, the court finds that he was not acting as an agent of the government as a matter of law.

Defendants also assert that County Court committed reversible error by failing to grant their motions for severance based upon the substantial prejudice which inured to each by reason of the inculpatory statements of co-defendants introduced at trial. Only one moved for a separate trial, while another moved for severance after the joint trial began.

County Court, in its discretion for good cause shown, may grant a separate trial based upon its determination that a joint trial will yield undue prejudice to a defendant. However, where proof against both defendants is supplied to a great extent by the same evidence, only the most cogent reasons warrant a severance.

Since defendants failed to demonstrate that their defenses were antagonistic, mutually exclusive or irreconcilable, or that their representation had been impaired by virtue of a joint trial, the court perceives no error.

As to the unsuccessful proffer by defendants of newspaper articles containing reports on the robbery for the purpose of demonstrating that rather than learning of details of the robbery through admissions of the participants the People's witnesses could have acquired such information from the news stories, the court again finds no error. Defendants neither testified nor established that any of these witnesses actually read such articles. Having failed to lay a proper foundation, the refusal to admit them was proper.

Defendants' remaining contentions lack merit.

Consequently, defendants' guilt was established beyond a reasonable doubt and the verdict was not against the weight of the evidence.

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