Under Bruton v United States, “a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” … . Since the rule only applies where the codefendant’s statement was “incriminating on its face, and [not where it] became so only when linked with evidence introduced later at trial” …, the question before us is whether the codefendant’s grand jury testimony was facially incriminating as to defendant, rather than incriminating only when linked to other evidence. * * *

Although the codefendant’s grand jury testimony was intended as an innocent explanation of the events surrounding the alleged robbery, and admitted no wrongdoing, nevertheless it was “facially incriminating” as to defendant within the meaning of Bruton.

The codefendant’s narrative placed defendant with the codefendant throughout the relevant events and, specifically referring to defendant approximately 40 times, described defendant’s conduct. Among other things, the statement recounted that, after defendant’s return to the codefendant’s car following an absence to “get food,” the alleged robbery victim (an undercover officer) appeared at the car window, asked where the “stuff” was, and dropped prerecorded buy money (the property allegedly stolen in the charged robbery) into the car. This narrative suffices to create an inference that defendant, while outside the codefendant’s vehicle, had purported to set up a deal for a sale of contraband that was to culminate in the vehicle, but did not fulfill the deal once he entered the vehicle.  People v Johnson, 2014 NY Slip Op 08765, 1st Dept 12-16-14

A defendant’s right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” …; however, no such violation occurs where, as here, the codefendant’s statement incriminates the defendant only in light of other evidence produced at trial … . Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant … . Accordingly, the statement was admissible, and defendant’s rights under the Confrontation Clause were not violated by the People’s arguments that drew inferences about his participation by linking the statement with other trial evidence … . People v Maschio, 2014 NY Slip Op 03551, 3rd Dept 5-15-14

…[D]uring opening statements, the prosecutor told the jury that, after the nontestifying codefendant was arrested, the police learned of the involvement in the crime of someone called “Live,” i.e., the defendant. Thus, the prosecutor improperly implied that the codefendant implicated the defendant in the crime … . In denying the defendant’s mistrial motion based on this conduct, the court nonetheless admonished the prosecutor, … telling him that the court was “not happy with the remarks.”

Despite this admonishment, in summation, the prosecutor again implied that the codefendant had implicated the defendant. Specifically, he unequivocally suggested that the unnamed accomplice referred to in the “question and answer” portion of the statement, whom the codefendant stated had a 9 millimeter gun, was the defendant. Further, the prosecutor projected for the jury, on a video screen, a copy of the codefendant’s statement, with the word “we” highlighted in red, and directly suggested that the jury should draw the inference that “we” in the codefendant’s statement referred to the codefendant and the defendant. Under the circumstances of this case, this conduct constituted “an unjustifiable circumvention” of the Bruton rule …, and deliberate defiance of the pretrial order. People v Singleton, 2013 NY Slip Op 07509, 2nd Dept 11-13-13