People v. Eastman

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Bernstein, J.), entered February 7, 1991, which denied his motion pursuant to CPL 440.10 (1) (h) and (2) (a) to vacate a judgment of the same court, rendered June 10, 1982, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict. By decision and order of this Court dated October 28, 1985, the judgment was affirmed (People v Eastman, 114 AD2d 509, Iv denied 67 NY2d 651).

Ordered that the order is affirmed.

The defendant seeks a reversal of his judgment of conviction on the ground that Cruz v New York (481 US 186), which was determined long after the defendant’s judgment became final, should be retroactively applied to his case. The defendant contends that if this Court applied Cruz, we would find that the admission of the statement of the nontestifying codefendant at the joint trial of the codefendant and the defendant constituted reversible error.

We find it unnecessary to address the question of retroactivity of the Cruz holding to cases no longer on direct appeal, in light of our finding that, even if Cruz v New York (supra), were to be given retroactive effect in the instant case, the error would be harmless.

The statement of the nontestifying codefendant was not admitted as evidence against the defendant, and the defendant’s own inculpatory statement was comprehensive and satisfactorily explained his part in the crimes charged. Further, the defendant did not affirmatively repudiate his inculpatory statements. Thus, based upon our assessment of "the probable impact” of the codefendant’s statement on the "minds of an average jury”, we find that there is no reasonable possibility that the admission of the codefendant’s statement affected the verdict against the defendant (see, People v Hamlin, 71 NY2d 750, 758, quoting Harrington v California, 395 US 250, 254). Bracken, J. P., Balletta, O’Brien and Copertino, JJ., concur.