Opinion
March 26, 1990
Appeal from the Supreme Court, Queens County (Leahy, J.).
Ordered that the judgment is affirmed.
We have already concluded on the appeal of the codefendant Eujenee Poywing that the admission of the pretrial statement of the nontestifying codefendant Victor Poywing was error under the principles enunciated in Bruton v United States ( 391 U.S. 123) and Cruz v New York ( 481 U.S. 186, on remand 70 N.Y.2d 733; see, People v Poywing, 150 A.D.2d 810; People v Poywing, 155 A.D.2d 561). However, we find that there is no reasonable possibility that the jury would have acquitted this defendant had the codefendant Victor Poywing's statement not been admitted (see, People v Hamlin, 71 N.Y.2d 750; People v Crimmins, 36 N.Y.2d 230; People v Mistretta, 147 A.D.2d 661). In making this assessment the defendant's own confession may be considered (People v Ortiz, 137 A.D.2d 727; People v Reed, 136 A.D.2d 577). The defendant's statement explained his role as a full partner in the robbery, which resulted in the victim's death (Penal Law § 125.25). This statement was corroborated by the recovery of the property taken during the robbery, including a typewriter the defendant had pledged in his own name at a pawnshop. In addition to the defendant's own inculpatory statement, the codefendant Eujenee Poywing, who did testify, also implicated the defendant in the robbery. Moreover, a prosecution witness, Kim Polite, also testified as to the defendant's admissions and corroborated the defendant's statement as to the disposal of the property taken during the robbery.
The defendant's further contention that the trial court erred in failing to give an accomplice charge (see, CPL 60.22) with respect to the testimony of Eujenee Poywing and Kim Polite is unpreserved for appellate review (see, People v Calandro, 127 A.D.2d 675), and we conclude that reversal in the exercise of our interest of justice jurisdiction is not warranted (see, People v Brooks, 34 N.Y.2d 475; People v Cefaro, 21 N.Y.2d 252; People v Poywing, 155 A.D.2d 561, supra; cf., People v Diaz, 19 N.Y.2d 547; People v Ramos, 68 A.D.2d 748).
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Eiber, Balletta and Rosenblatt, JJ., concur.