People v. Williams

Bracken, J. P.

(concurring). The defendant argues that the ruling by the trial court which limited his ability to cross-examine a testifying codefendant, amounted to a violation of his constitutional right to confront the witnesses against him (see, US Const 6th, 14th Amends; NY Const, art I, § 6; Olden v Kentucky, — US —, 57 USLW 3410; Coy v Iowa, 487 US —, 108 S Ct 2798; Delaware v Van Arsdall, 475 US 673; Douglas v Alabama, 380 US 415; Pointer v Texas, 380 US 400; People v McGee, 68 NY2d 328; People v Gissendanner, 48 NY2d 543, 547-548). My colleagues in the majority hold that the defendant’s failure to request a severance operated as a forfeiture of his right to appellate review of this argument. With this aspect of the opinion of the majority I might well agree (see, People v McGee, supra; see also, People v Russell, 71 NY2d 1016; People v Walker, 71 NY2d 1018).

However, in rejecting the defendant’s argument on the merits, the majority goes further and holds, as I understand it, that if a motion for a severance had been made, it could properly have been denied by the trial court. This is so because, as is stated in the opinion of the majority, a trial *321court "may properly use its discretionary powers to limit the defendant’s cross-examination into his codefendant’s prior convictions”. I cannot concur in this aspect of the court’s decision (see, People v McGee, supra; see also, People v Rodriguez, 91 AD2d 591).

In voting to affirm the defendant’s conviction, I rely principally on two factors which, it seems to me, render any error by the trial court in this respect harmless beyond a reasonable doubt (see, Cruz v New York, 481 US 186; Delaware v Van Arsdall, supra; People v Hamlin, 71 NY2d 750; People v Allen, 67 AD2d 558, affd 50 NY2d 898; People v York, 126 AD2d 767, 770 [violations of Confrontation Clause may be harmless]). First, the codefendant’s testimony, while tending to exculpate him, and while tending to contradict certain aspects of the defendant’s testimony, did not significantly incriminate the defendant (see, United States v Crockett, 813 F2d 1310). Second, it appears that the defendant’s attorney did, in fact, extensively cross-examine the codefendant concerning the details of his prior immoral and criminal acts, in apparent disregard of the trial court’s ruling. For these reasons, and in light of the overwhelming proof of the defendant’s guilt, I would not reach this issue of denial of the right of confrontation in the interest of justice.

I therefore concur in the affirmance of the defendant’s judgment of conviction.

Lawrence and Weinstein, JJ., concur with Balletta, J; Bracken, J. P., concurs in a separate opinion.

Ordered that the judgment of the Supreme Court, Westchester County, rendered September 30,1985, is affirmed.