Opinion
November 16, 1994
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of two counts of felony murder, one count of manslaughter in the second degree, three counts of burglary in the first degree, one count of criminal possession of a weapon in the third degree, and three counts of attempted robbery in the first degree. Defendant's motion for a severance was denied and defendant was tried jointly with a codefendant, whose statement was admitted at trial. The People concede that a Bruton violation occurred (see, Cruz v. New York, 481 U.S. 186; Bruton v. United States, 391 U.S. 123) but argue that the error is harmless. We agree. A Bruton violation is subject to harmless error analysis (see, People v. Pitts, 71 N.Y.2d 923, 925). To determine whether such an error is harmless in a particular case, a reviewing court must consider "(1) the quantum and nature of the evidence against defendant if the error is excised and (2) the causal effect the error may nevertheless have had on the jury" (People v. Hamlin, 71 N.Y.2d 750, 756). Here, the testimony of two other accomplices as well as defendant's statement, which was properly admitted into evidence, provides overwhelming proof of defendant's guilt. The statement of the non-testifying codefendant was merely cumulative and its admission harmless (see, People v. Faust, 73 N.Y.2d 828, 829, rearg denied 73 N.Y.2d 995; People v. West, 72 N.Y.2d 941; People v. Saddler, 166 A.D.2d 878, 879, lv denied 77 N.Y.2d 843, cert denied 500 U.S. 955; People v. Thompson, 161 A.D.2d 1203).
The prosecutor improperly elicited testimony concerning defendant's refusal to answer certain questions asked by police officers and improperly commented, in his opening statement and upon summation, upon defendant's refusal to answer those questions (see, People v. Basora, 75 N.Y.2d 992, 993; People v Von Werne, 41 N.Y.2d 584, 588). The misconduct was not pervasive and is harmless in light of the overwhelming evidence of guilt (see, People v. Mangarella, 190 A.D.2d 757, 758).
Defendant failed to demonstrate good cause for the substitution of assigned counsel (see, People v. Sides, 75 N.Y.2d 822, 824). The court did not err in refusing to allow defendant to substitute counsel on the eve of trial (see, People v. Tineo, 64 N.Y.2d 531, 536; People v. Ashraf, 186 A.D.2d 1057, 1058, lv denied 80 N.Y.2d 1025). We further conclude that defendant was not denied effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 146-147).
Because it is theoretically impossible to commit the crime of attempted robbery in the first degree under Penal Law § 160.15 (1), defendant's conviction of that crime under count six of the indictment must be reversed, the sentence imposed thereon vacated, and that count dismissed (see, People v. Miller, 201 A.D.2d 109). We decline to modify defendant's sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [b]). We have reviewed defendant's remaining arguments and conclude that they are lacking in merit.