author: Stein, J. Pigott, J.

text:
    [50 NE3d 901, 31 NYS3d 434]
    The People of the State of New York, Respondent, v Assad Cedeno, Appellant.
    Argued February 9, 2016;
    decided March 29, 2016

      Lynn W.L. Fahey, Appellate Advocates, New York City (.De Nice Powell of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens {Nancy Fitzpatrick Talcott, Robert J. Masters and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

The question before us is whether the admission of a non-testifying codefendant’s redacted statement to police violated defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Because the statement was facially incriminating, its admission was error under Bruton v United States (391 US 123 [1968]) and its progeny. Inasmuch as that error was not harmless under the circumstances of this case, we conclude that reversal is required.

I.

The charges against defendant arose out of a large-scale fight between two rival gangs, the Trinitarios and the Latin Kings. The victim, Ariel Pena Rodriguez, was stabbed and killed during the fight. Defendant was thereafter charged in an indictment — along with six codefendants allegedly associated with the Latin Kings — with murder in the second degree, gang assault in the first degree, assault in the first degree and four counts of criminal possession of a weapon in the fourth degree.

Prior to the incident, the victim and his friends, including “Witness 1,” were riding the subway when Witness 1 — a former Latin King who had joined the Trinitarios — saw codefendant Jason Villanueva staring at him from an adjoining subway car. Witness 1 later observed Villanueva stroking his face and laughing at him, which Witness 1 interpreted as a reference to a prior incident in which Villanueva allegedly slashed his face while defendant hit him with a cane. When the train reached a station, the victim saw Trinitario gang members on the platform and stepped out to greet a friend. Someone from the group of Trinitarios then threw a bottle into the subway car where defendant and other members of the Latin Kings were located. The Latin Kings rushed the Trinitarios and the victim stepped in front of Witness 1, at which point defendant, Villan-ueva and codefendant Ariel Casares — who each had knives— stabbed and beat the victim, while two other codefendants punched and kicked him.

Police present at the station when the fight began prevented anyone from leaving and requested backup. Additional officers arrived on the platform shortly thereafter, while the fighting continued. The officers separated the combatants, restored order among the approximately 100 people involved, obtained aid for the victim, and conducted identification procedures. Approximately 40 minutes after the fight began, police had potential witnesses identify the perpetrators. Numerous witnesses identified multiple offenders to different officers. Witness 1 and “Witness 2” identified defendant as one of the victim’s attackers at the scene. The suspects and witnesses were then taken to the precinct, where police spent four hours confirming the identifications made at the scene. The victim was transported to the hospital, where he died.

After an extensive Wade/Huntley hearing, Supreme Court denied defendant’s motion to suppress the identifications of him, rejecting his arguments that the identifications at the scene were suggestive and that the “confirmatory” identifications made later at the precinct were tainted by the first identification at the scene. Defendant also moved to sever his trial from that of Villanueva in light of the People’s notice of their intention to admit a statement by Villanueva that described defendant as “one of the Latin Kings wearing red [and] white trunks,” and claimed that defendant “pulled out a knife and rushed the whole crowd” and then “ran over to the victim and started punching him with a small knife.” Supreme Court also denied that motion, as well as defendant’s request to redact Villanueva’s description of the assailants who stabbed the victim as being Latin Kings. The court did, however, direct the People to remove the description of defendant’s clothing from Villanueva’s statement.

Defendant was tried jointly with codefendants Villanueva, Casares and Christian Tineo. Three eyewitnesses identified defendant as having stabbed the victim; Witness 1 and Witness 2 testified that they knew defendant as “Bambino” before the attack, from school and gang activities. Villanueva’s redacted statement was also admitted, with jury instructions that no deleted or redacted information could be considered. When a detective testified that defendant’s girlfriend at the time of the fight told him that defendant was nicknamed “Bambino,” the court sustained an objection by defense counsel. However, arguing that the objection could not be cured, counsel moved for a mistrial on the grounds that the testimony about the nickname was inadmissible hearsay that corroborated the testimony of Witness 1 and Witness 2. The court denied the motion and counsel declined the court’s offer to give a curative instruction.

Defendant was convicted of first-degree gang assault and fourth-degree weapons possession, and was acquitted of second-degree murder and the lesser included manslaughter charge. The People dismissed three counts on which the jury deadlocked — first-degree assault and two fourth-degree weapons possession charges. Defendant was sentenced to an aggregate term of 16 years in prison, to be followed by five years of postrelease supervision.

Upon defendant’s appeal, the Appellate Division unanimously affirmed (113 AD3d 695 [2d Dept 2014]). The Court rejected defendant’s assertion that the admission of Villanueva’s redacted statement violated Bruton “because the subject redaction would not have caused the jurors to ‘realize that the confession refers specifically to the defendant’ ” (id. at 697, quoting Gray v Maryland, 523 US 185, 193 [1998]). The Court also concluded that admission of the statement of defendant’s former girlfriend to the detective constituted hearsay but that the error was harmless (see 113 AD3d at 697). Regarding defendant’s objection to admission of the pretrial identifications of him, the Court determined that the identifications both at the scene of the crime and at the precinct were reasonable under the circumstances and were not unduly suggestive (see id. at 696).

A Judge of this Court granted defendant leave to appeal (24 NY3d 959 [2014]).

II.

Defendant argues that the admission of Villanueva s redacted statement violated his rights under the Confrontation Clause, as discussed in Bruton. As this Court has previously explained, the Confrontation Clause “prohibits the use of ‘testimonial’ hearsay against a defendant in a criminal case, even if the hearsay is reliable, unless the defendant has a chance to cross-examine the out-of-court declarant” (People v Goldstein, 6 NY3d 119, 127 [2005], cert denied 547 US 1159 [2006]). Introduction of a codefendant’s testimony at a joint trial generally does not violate the Confrontation Clause because the codefendant “is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against [the] co-defendant” (Richardson v Marsh, 481 US 200, 206 [1987]). However, the Supreme Court has recognized a narrow exception to the general rule concerning a codefendant’s confession that implicates the defendant, holding “that a defendant is deprived of his [or her] Sixth Amendment right of confrontation when the facially incriminating confession of a nontestify-ing codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant” (id. at 207; see Bruton, 391 US at 135-136).

The exception, or Bruton rule, is necessary because:

“[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented . . . where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial” (Bruton, 391 US at 135-136 [citations omitted]).

In other words, the Bruton rule provides “that certain ‘powerfully incriminating extrajudicial statements of a codefendant’— those naming another defendant — considered as a class, are so prejudicial that limiting instructions cannot work” (Gray, 523 US at 192).

Richardson distinguished Bruton, thereby further restricting the already narrow exception, for cases involving confessions that are “not incriminating on [their] face, and bee [o] me so only when linked with evidence introduced later at trial” (Richardson, 481 US at 208; see United States v Lung Fong Chen, 393 F3d 139, 148 [2d Cir 2004]; see also Gray, 523 US at 195 [“We concede that Richardson placed outside the scope of Bru-ton’s rule those statements that incriminate inferentially”]). The Supreme Court reasoned that, “[w]here the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence” (Richardson, 481 US at 208). Thus, the Court held “that the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence” (id. at 211).

In Richardson, the Court left open the question of the admissibility of confessions “in which the defendant’s name has been replaced with a symbol or neutral pronoun” (id. at 211 n 5). The Court ultimately answered that question in Gray, concluding that “Richardson . . . depend [s] in significant part upon the kind of, not the simple fact of, inference,” and upheld as permissible those “statements that did not refer directly to the defendant himself [or herself] and which became incriminating ‘only when linked with evidence introduced later at trial’ ” (Gray, 523 US at 196, quoting Richardson, 481 US at 208). In that regard, “Bruton and its progeny ... do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant” (United States v Jass, 569 F3d 47, 60 [2d Cir 2009], certs denied 558 US 1159 [2010], 559 US 1087 [2010] [emphasis added]). Rather, the Bruton rule applies to “statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” (Gray, 523 US at 196 [emphasis added]).

As the Second Circuit stated in Jass, further elucidating Gray, “[t]he critical inquiry is . . . whether [a] neutral allusion [to a confederate] sufficiently conceals the fact of explicit identification [of the defendant] to eliminate the overwhelming probability that a jury hearing the confession at a joint trial will not be able to follow an appropriate limiting instruction” (Jass, 569 F3d at 61). Redactions of a statement “in which the non-declarant defendant’s name [is] replaced with ‘a blank space or the word “deleted” ’ . . . [are] inadequate to avoid Bruton’s Confrontation Clause concern” (id. at 57, quoting Gray, 523 US at 188), because such a redaction is “more likely to emphasize than to conceal the fact that the declarant had specifically inculpated someone” (Jass, 569 F3d at 59 [emphasis added]). In contrast to “replacing a defendant’s name with an obvious blank or ‘deleted’ reference,” which is “insufficient to avoid Bruton error, the Supreme Court indicated [in Gray] that substituting neutral words might well pass constitutional muster” (id. at 57) in the absence of an indication that “th[e] confession referred] directly to the ‘existence’ of the noncon-fessing defendant” (Gray, 523 US at 192). Thus, the Second Circuit articulated that a two-step inquiry is appropriate in determining whether “particular redactions and substitutions . . . [are] sufficient to avoid the constitutional error identified in Bruton” (Jass, 569 F3d at 61). First, a court must examine whether a redacted statement inculpates a specific person— such as when a statement bears “ ‘obvious indications of alteration’ ” — and, second, whether that statement “even if ‘the very first item introduced at trial’ would ‘immediately’ inculpate [the defendant] in the charged crime” (id. at 61-62, quoting Gray, 523 US at 192, 196).

This Court’s decision in People v Wheeler (62 NY2d 867 [1984]) is entirely consistent with Jass; indeed, Wheeler anticipated both Gray and Richardson. In Wheeler, we recognized — as did the Supreme Court in Richardson — that, if a codefendant’s “confession . . . can be effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant, it may be utilized at the joint trial” (Wheeler, 62 NY2d at 869). Further, as in Gray, we held that merely replacing a defendant’s name with the word “deletion” is not an effective redaction that would render admissible a codefendant’s statement implicating a defendant (see id. at 869). Although there was evidence in Wheeler that a third individual participated in the crime and the jury might have “viewed [the] references in the confession as concerning this additional participant,” we deemed that possibility “insufficient to eliminate the prejudice to [the] defendant from the use of [the] statement upon his trial” (id.). Adopting reasoning nearly identical to that in Gray, we explained: “Given that the two [defendants] were being tried for the crime together, we believe the confession could only be read by the jury as inculpating [the] defendant” (id.). In other words, we concluded that the redacted statement was inadmissible, first, because it contained obvious indications that it was altered to protect the identity of a specific person and, second, because it would be immediately apparent that the statement, standing alone, implicated the defendant (compare Jass, 569 F3d at 61-63).

Applying those principles here, we conclude that “the admission [of Villanueva’s statement] created an intolerable risk that the jury would not, or could not, follow an instruction to consider [the] redacted [statement] only against him, and not against [defendant]” (id. at 61). We acknowledge that Villanue-va’s statement, as read out loud at trial, did not appear to have been obviously redacted. When read out loud, the statement simply referred to a generic “Latin King,” of which there were many involved in the fight. However, the manner in which the physical, written statement itself — which was provided to the jury — was redacted made it obvious that Villanueva expressly implicated a specific Latin King. The identifying description of defendant was simply replaced with a large blank space, and the statement further indicated that “[t]he victim was bleeding the same Latin King [large blank space] ran over to the victim and starting punching him with a small knife.” The statement therefore ran afoul of the core concern underlying the Bruton rule — “[f]rom Bruton to Richardson to Gray, the Supreme Court’s Confrontation Clause concern has been with juries learning that a declarant defendant specifically identified a co-defendant as an accomplice in the charged crime” (id. at 60). Given that defendant was one of three codefendants sitting at the table with Villanueva, the statement powerfully implicated him.

Stated differently, the written statement was not “effectively redacted so that the jury would not interpret its admissions as incriminating the nonconfessing defendant [s]” (Wheeler, 62 NY2d at 869). Rather, the statement, with large, “blank [spaces] prominent on its face, . . . ‘facially incriminat[ed]’ ” a codefendant because it “involve [d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial” (Gray, 523 US at 196, quoting Richardson, 481 US at 209). Any juror “wonder-ting] to whom the blank might refer need[ed] only lift his [or her] eyes to [Villanueva’s codefendants], sitting at counsel table, to find what [would] seem the obvious answer” (Gray, 523 US at 193). In our view, the replacement of the identifying descriptors of defendant with blank spaces did not leave “the slightest doubt as to whose name[ ] had been blacked out, but even if there had been, that blacking out itself would have not only laid the doubt, but underscored the answer” (id. at 193-194 [internal quotation marks and citation omitted]), particularly after the court instructed the jury that it was not to speculate about the redactions in any way. The redacted statement both “indicat[ed] to the jury that the original statement contained actual names” or clearly identifying descriptors and, “even if the very first item introduced at trial [,] [it] would immediately inculpate [a codefendant] in the charged crime” (Jass, 569 F3d at 61 [internal quotation marks and citations omitted]; see Gray, 523 US at 196; Wheeler, 62 NY2d at 869). Therefore, we conclude that its admission violated the Bruton rule.

III.

Nor can it be said that the error was harmless. The evidence against defendant was not overwhelming. Three eyewitnesses identified defendant, but the testimony of Witness 1 and Witness 2 was undermined by their admitted bias. Specifically, Witness 1 testified that he hated the Latin Kings and wanted revenge on them for the prior incident in which his face was slashed, and Witness 2 admitted that he was testifying against defendant in exchange for a favorable letter to the Parole Board. The third eyewitness did not know defendant before the incident and did not identify him until trial — she identified two other codefendants at the scene but then became frightened and neither identified anyone else nor participated in the identifications at the precinct. In addition to the foregoing factors, the nature of the attack itself — a confusing melee involving dangerous circumstances during which multiple fights were occurring at once — left the eyewitness testimony open to challenge.

Moreover, under our state rule regarding harmless error, even if “there was overwhelming proof of the defendant’s guilt, [the] inquiry does not end there . . . [, but further inquiry must ... be made by the appellate court as to whether, notwithstanding the overwhelming proof of the defendant’s guilt, the error infected or tainted the verdict” (People v Crimmins, 36 NY2d 230, 242 [1975]), i.e., whether there is a reasonable possibility, in instances of constitutional error, such as that at issue here, that the error affected the verdict (see id. at 241). There was a strong likelihood here that the jury considered Villanueva’s statement as implicating defendant, thereby tainting the verdict. First, while the trial court did instruct the jury not to consider the redactions in the statement at all, the court failed to give the critical limiting instruction that the jury should not consider the statement itself against anyone but Villanueva (see Richardson, 481 US at 206 [admission of a codefendant’s testimony at a joint trial does not violate the Confrontation Clause because the codefendant “is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against (the) co-defendant” (emphasis added)]). “[T]he law assumes that even a redacted statement will prejudice a defendant if it is considered against him” (Jass, 569 F3d at 60-61). Absent a proper limiting instruction, and given both the statement’s identification of two individuals as the stabbers and the testimony at trial that defendant and Casares were the stabbers, it cannot be said that “there is no reasonable possibility that the erroneously admitted [statement] contributed to the conviction” (People v Hamlin, 71 NY2d 750, 756 [1988]).

The erroneous admission of the statement must also be considered in conjunction with the improper hearsay testimony that defendant’s girlfriend referred to defendant as “Bambino.” As previously noted, the eyewitness identifications of Witness 1 and Witness 2 were open to challenge based upon their evident biases. However, their testimony indicating that defendant— who they knew as “Bambino” — was one of the stabbers was bolstered by the detective’s testimony that defendant’s own girlfriend also called him “Bambino.” Notwithstanding that the trial court sustained an objection to the detective’s testimony, the confirmation that defendant was, in fact, “Bambino” undermined his attempts to call the credibility of Witness 1 and Witness 2 into question. Additionally, although not alone determinative, we note that the jury here struggled with the verdict, requiring the court to provide an Allen charge. The jury not only acquitted defendant of second-degree murder and the lesser included charge of first-degree manslaughter, but failed to reach a verdict on three other counts against defendant. Under the circumstances, we reject the People’s argument that the error in the admission of Villanueva’s statement was “harmless beyond a reasonable doubt” (Hamlin, 71 NY2d at 756; see Wheeler, 62 NY2d at 869-870).

IV.

Finally, defendant’s challenge to the denial of his motion to suppress the identification testimony — to the extent that it was preserved — presents a mixed question of law and fact (see People v Howard, 22 NY3d 388, 403 [2013]; People v Gilford, 16 NY3d 864, 868 [2011]). “The due-process inquiry for show-ups calls upon the suppression court to decide whether the showup was reasonable under the circumstances — i.e., justified by exigency or temporal and spatial proximity — and, if so, whether the showup as conducted was unduly suggestive” (Gilford, 16 NY3d at 868). Inasmuch as “it simply cannot be said that no record support exists for [the] determination that this showup was reasonable and not unduly suggestive” (Howard, 22 NY3d at 403 [emphasis added]), this mixed question is beyond our further review.

As a result of our decision, we need not address defendant’s remaining contentions. The order of the Appellate Division should be reversed and a new trial ordered.

Pigott, J.

(dissenting). The primary issue in this case boils down to whether codefendant Villanueva’s redacted statement “obviously refers to the defendant” (Gray v Maryland, 523 US 185, 194 [1998]). The majority holds that it does. I disagree.

A redacted statement of a non-testifying codefendant cannot be admitted at a defendant’s joint trial if the redaction “so closely resemble [s] ” the facially incriminating statements prohibited by Bruton v United States (391 US 123 [1968]) that the jury cannot refrain from attributing it to the defendant (Gray, 523 US at 192). Redactions that simply “replace[ ] a defendant’s name with an obvious indication of deletion, such as a blank space, the word ‘deleted,’ or a similar symbol,” generally fall within this rule (id.). However, it is not the case that every redacted statement containing blank spaces or signs of deletion must be excluded. If a redaction sufficiently conceals the person to whom the blank spaces refer, the statement may be admitted with proper limiting instructions (id. at 194).

Villanueva’s redacted statement, read to the jury by Detective Moser without objection, provided in pertinent part:

“Then all of a sudden one of the Latin Kings pulled out a knife and rushed the whole crowd. One of the Trinitarios asked me, are you with them? I said, no. Then they started throwing bottles. There was a commotion on the platform and I started running after them. I moved to the back of the car. The Latin Kings were there. That’s when . . . [o]ne male pulled out a black knife. He went out of the train. Then I looked out of the car and observed him striking the victim with the knife. The victim was bleeding. The same Latin King . . . [r]an over to the victim and started punching him with a small knife. Cops came back up on to the platform and found the victim on the floor. Then more police showed up.”

No one suggested that this statement “obviously refer [red] to the defendant” (Gray, 523 US at 194). The identical statement was introduced into evidence in written form. On paper, it read:

“[T]hen all the sudden one of the Latin Kings pulled out a knife and rushed the whole crowd. One of the Trin [it] arios asked me are you with them I said no, then they started throwing bottles, there was a cop on the platform and he started running after them. I moved to the back of the car the Latin Kings were there that’s when the one with male pulled out a black knife he went out of the train, then I looked out the car and observed him striking the victim with the knife. The victim was bleeding the same Latin King ran over to the victim and starting punching him with a small knife, the cop came back up onto the platform and found the victim on the floor, then more police showed up.”

Although the redacted statement contained blank spaces and clear signs of alteration, it “would not have caused the jurors to ‘realize that the confession refers specifically to the defendant’ ” (People v Cedeno, 113 AD3d 695, 697 [2d Dept 2014], quoting Gray, 523 US at 193). The statement revealed only that one Latin Kang pulled out a knife and punched the victim, while another attacked him with a knife. But there were four Latin Kings at the defense table, of whom Villanueva was one. Thus, even if Villanueva’s redacted statement “implicated a specific Latin King” (majority op at 120), it is not at all clear which Latin King it implicated — defendant, Casares, Tineo, one of the participants who pleaded guilty before trial, or yet another person who may have escaped in the mayhem (see Gray, 523 US at 195 [noting that the blank spaces in a redacted statement may not clearly refer to a defendant where the statement “uses two (or more) blanks, even though only one other defendant appears at trial, and in which the trial indicates that there are more participants than the confession has named”]). A juror wondering to whom the statement might refer would need to do much more than “lift his [or her] eyes” to counsel’s table to determine “what [would] seem the obvious answer” (majority op at 120, quoting Gray, 523 US at 193). He or she would first need to link the statement with other evidence presented at trial and draw inferences based on that evidence in order to conclude that defendant may have been involved. Where such inference and linkage is required, Bruton does not apply.

The Second Circuit’s recent decision in Jass supports this conclusion (United States v Jass, 569 F3d 47 [2d Cir 2009]). Defendant Jass and codefendant Leight were charged with several counts of criminal sexual activity with a child. After his arrest, Leight had made a statement to the authorities that “he and Jass [had taken] [the victim] to [a] mall [in New Jersey]” and, after they went shopping they took the victim to a hotel and performed multiple sexual acts with her (id. at 52). At trial, an FBI agent testified to a redacted account of Leight’s post-arrest admissions, substituting the phrase “another person,” “the other person” and “we” wherever Leight had previously identified the defendant. Thus, as redacted, the agent testified that “Mr. Leight told me that he and another person had taken [Victim 2] to the Rockaway Mall in New Jersey,” that “he and the other person and [Victim 2] returned back to the hotel,” that “Mr. Leight stated to me that [Victim 2] kissed him and the other person,” etc. {id. at 53).

The trial court admitted these redacted statements with a limiting instruction to consider them only as evidence against Leight. Defendant was convicted and claimed on appeal that the redactions facially implicated her in the crime. The Second Circuit disagreed, and held that no Sixth Amendment violation occurred because “it would not have been immediately apparent to a jury that heard only [the codefendant]’s redacted references to ‘another person’ that he was specifically inculpating [defendant] in the abuse of [the victim]. The ‘other person’ could have been anyone” {id. at 62 [emphasis added]). The Second Circuit reached this conclusion, notwithstanding the fact that Leight’s statements incriminated only one other person, and that Jass was the only other defendant at trial.

Like the testimony admitted in Jass, it was not immediately apparent to the jury that defendant was either the “Latin King” or the “male” inculpated in the redacted statement. Any of the Latin Kings Villanueva described at the subway station fit that description, as well as the three defendants on trial with him. Because there is nothing in Villanueva’s redacted statement that identified, let alone “powerfully incriminat[ed]” (Bruton, 391 US at 135) defendant as one of the perpetrators of the crime, and none of defendant’s remaining arguments warrants reversal, I would affirm.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam and Fahey concur; Judge Pigott dissents in an opinion in which Judge Garcia concurs.

Order reversed and a new trial ordered.

      . Casares was found guilty of first-degree manslaughter, as a lesser included offense of murder, as well as first-degree gang assault, first-degree assault and fourth-degree criminal possession of a weapon, and was sentenced to 18 years in prison. Villanueva was found guilty of first-degree gang assault and was sentenced to 16 years in prison. Tineo was acquitted of all charges.

      . Similarly to the Second Circuit, we emphasize that “the substitution of neutral pronouns for redacted names” does not invariably resolve Bruton concerns (United States v Jass, 569 F3d 47, 56 n 5 [2d Cir 2009], certs denied 558 US 1159 [2010], 559 US 1087 [2010]). Such “substitution[s] of a neutral word for a defendant’s name” are permissible only if made “in a way that resemblef ] a statement that a declarant might actually have made if he [or she] had been trying to avoid specifically identifying a confederate” (id. at 59). In Jass, “[t]he redaction of [defendant’s] name from [codefendant’s] confession and the substitution of neutral words such as ‘another person’ ” was upheld because — unlike the redacted statement at issue here — the redaction “effectively concealed from the jury the fact that [codefendant] had ‘refer[red] directly to someone’ ” (id., quoting Gray v Maryland, 523 US 185, 196 [1998]).

      . Defendant did not argue before the trial court, as he does here, that precinct showups are inherently suggestive.

      . I question whether Villanueva’s statement even falls within Bruton’s protections since it did not identify defendant by name or specific description. It identified him only by an article of clothing, when it said that “one of the Latin Kings wearing red & white trunks pulled out a knife and rushed the whole crowd.” That fact alone makes this statement substantively different from the ones at issue in Bruton and Gray, which directly identified the defendant by name (see Bruton, 391 US at 124; Gray, 523 US at 192), as well as the statement in Harrington v California, which identified the defendant as a “white guy” and gave a description of his age, height, weight and hair color (395 US 250, 253 [1969]). Although the Court in Gray said that “nicknames and specific descriptions” fall within Bruton’s scope, it has yet to apply a Bruton analysis to a statement like Villanueva’s that identifies the defendant only by brief reference to the color of his shorts (id. at 195 [emphasis added]).

      . The trial court in this case did not instruct the jury to use the redacted statement only against codefendant Villanueva, but defendant did not object to the court’s instruction and does not challenge it here. Therefore, the adequacy of the court’s charge in the context of the alleged Bruton error is not before us (see People v Hawkins, 11 NY3d 484, 491-492 [2008]).


source: Caselaw Access Project

author: Stein, J. Fahey, J.

license: Public Domain

text:
    [50 NE3d 888, 31 NYS3d 421]
    The People of the State of New York, Respondent, v Anthony DiPippo, Appellant.
    Argued January 7, 2016;
    decided March 29, 2016

      Brafman & Associates, P.C., New York City (Mark M. Baker, Benjamin Brafman and Jacob Kaplan of counsel), for appellant.

      Adam B. Levy, District Attorney, Carmel {David M. Bishop and Heather M. Abissi of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

On this appeal, defendant Anthony DiPippo argues that the trial court abused its discretion by precluding him from introducing evidence of third-party culpability during his retrial for felony murder and rape in the first degree. We conclude that, under the circumstances of this case, defendant should have been permitted to present evidence of third-party culpability to the jury.

I.

In 1994, a 12-year-old girl (hereinafter the victim) went missing in Putnam County. Tragically, her remains were found, over one year later, in a wooded area off a dirt road known to some locals as “Marijuana Road.” Defendant and one of his friends, Andrew Krivak, were arrested in 1996 and charged with raping and murdering the victim on or about October 3, 1994. Following a jury trial, defendant was convicted of murder in the second degree and rape in the first degree, and he unsuccessfully exhausted his direct appeals (265 AD2d 340, 340 [2d Dept 1999], lv denied 94 NY2d 918 [2000]).

On one of defendant’s subsequent CPL 440.10 motions, the Appellate Division vacated the judgment of conviction and sentence and remitted the matter for a new trial on the ground that defendant had been denied the effective assistance of trial counsel because his attorney had operated under a conflict of interest (82 AD3d 786, 787 [2d Dept 2011], lv denied 17 NY3d 903 [2011]). More specifically, counsel had previously represented Howard Gombert, a possible suspect in the victim’s rape and murder, on an earlier rape charge (see id. at 787-788). The Appellate Division concluded that counsel’s failure to disclose his prior representation of Gombert to defendant or the trial court, combined with counsel’s failure to “conduct even a minimal investigation” into Gombert’s potential involvement in the crimes for which defendant stood accused, demonstrated that the conflict operated on counsel’s representation of defendant (id. at 791).

Upon his retrial, defendant sought to admit evidence suggesting that Gombert was the perpetrator of the crimes with which defendant was charged. Defendant made an offer of proof to the court detailing the evidence that he claimed supported his third-party culpability defense. Foremost amongst this evidence was the affidavit of Joseph Santoro, who was incarcerated with Gombert in Connecticut and claimed that Gombert had. made incriminating admissions in April 2011 with respect to his involvement in the victim’s death.

According to Santoro’s affidavit, Gombert told him that Putnam County authorities were “trying to get him for the killing of two girls” in the Putnam County area. Gombert named the victim as one of the girls, asserting that, in any event, “they already convicted some other suckers” in connection with her death. Santoro asked Gombert, “[s]o the other guys didn’t do it?” and, according to Santoro, Gombert laughed and responded that “[e]ven if they didn’t, they got no evidence against me. It’s been a long time since then.” Thereafter, Gombert made a derogatory sexual comment about the victim, prompting San-toro to ask whether Gombert had sexual relations with her. Gombert explained to Santoro that he had met the victim at his former girlfriend’s house, and was attracted to her. Gombert claimed that the victim “flirted with him a lot” and offered to babysit for Gombert’s child, but Gombert declined the babysitting offer because he was with the child’s mother at the time. According to Santoro, Gombert then stated that “[t]he only way he could get [the victim] into his car was to tell her he wanted her to babysit for his daughter” and that, after he did so, he had sex with the victim in a red car with a black hood. Santoro elicited from Gombert that this occurred at “the time [the victim] disappeared.” When Santoro told Gombert that he would be better off keeping quiet, Gombert told him that “ ‘[i]t don’t matter now. They already got those other guys/suckers so I’m in the clear.’ ” Santoro also described sexual comments made by Gombert about the victim on a separate occasion, at which point Gombert told Santoro that the victim did not want to have sex with him, but he “had to persuade her.” In addition, Gombert made statements regarding a second missing girl, identified by first name, who had indeed gone missing, and whose body he claimed would never be found by the police. Santoro interpreted Gombert’s statements to him as boasts that Gombert had killed both girls, and that defendant and Krivak were wrongly prosecuted for killing the victim.

Defendant’s proffer supplemented Santoro’s affidavit with the statements of various witnesses establishing that Gombert knew the victim, having met her at his former girlfriend’s house, where the victim often spent time with the former girlfriend and her children. Defendant also submitted statements establishing that the victim had discussed babysitting Gombert’s child with Gombert and his then-girlfriend. Gombert’s then-girlfriend and another witness also confirmed that Gombert had regular access to and routinely drove the girlfriend’s car, which was red with a black hood and had Connecticut license plates. The girlfriend further informed police that, after they saw a missing person poster for the victim, Gombert told her that he had given the victim a ride in her car the previous week.

In addition, defendant proffered notes from a police officer indicating that a witness, Anita Albano, had seen the victim, on the last day that she was seen alive, getting into a compact red vehicle with Connecticut license plates, driven by a young man with whom the victim appeared to be familiar. When Albano viewed a photograph array, she stated that the person in picture number two, if anybody, looked like the driver; photograph number two depicted Gombert. Finally, defendant tendered what he termed “reverse Molineux” (People v Molineux, 168 NY 264, 273 [1901]) evidence, namely, allegations that Gombert had raped and sexually assaulted other girls and women in what he claimed was a similar manner to that which was alleged with regard to the victim.

Initially, County Court denied defendant’s motion to admit the third-party culpability evidence because it found that Al-bano had not identified Gombert as the driver of the vehicle she saw the victim enter on the day she disappeared, but the court later reopened the matter to hear testimony from Albano regarding her observations. At that hearing, Albano testified that she had not identified Gombert, who was older than the person she saw, as the driver; rather, she claimed to have told the police officers that the driver was not depicted in the photographs but that Gombert, if anyone, bore some resemblance to the driver. Albano further testified that, a few days before the hearing, she was shown a picture of the red vehicle belonging to Gombert’s former girlfriend, and that it was not the vehicle that she had seen on the day in question. Two police officers corroborated aspects of this testimony.

In light of Albano’s testimony and the absence of any direct evidence placing Gombert with the victim on the day she was last seen alive, County Court held that defendant had failed to present sufficient evidence pointing to Gombert as the perpetrator, and that Gombert’s alleged statements to Santoro were inadmissible hearsay. County Court thereafter denied defendant’s request to reconsider its ruling.

At trial, the People presented evidence generally establishing that the victim was last seen alive on October 3, 1994. A few witnesses testified that they saw the victim at a gas station that night, in the company of, among others, defendant and Krivak. According to the prosecution’s main witness, the victim, defendant, Krivak, the witness, and two other male friends were driving home from the gas station in Krivak’s van when Krivak pulled off to the side of “Marijuana Road.” The witness testified that two of the men were consuming drugs in the front seat, and that she and the others were drinking alcohol and smoking marihuana in the back when Krivak began grabbing at the victim, who resisted. According to the witness, Krivak threw the victim to the floor of the van, pulled off her clothing, tied her hands with rope, shoved her underwear in her mouth, tied her bra around her face, and raped her. A few minutes later, the witness asserted, defendant also raped the victim who, by the end, appeared “lifeless.” The witness testified that Krivak and defendant wrapped the victim in her clothes, picked her up, and left her somewhere outside the van.

The witness admitted, however, that she did not disclose any of this information to the police the first two times she spoke to them, and it was not until two years after the alleged murder, when she received warnings from the police that she could be charged, that she implicated defendant and Krivak. Further, the witness’s credibility was impeached by questions concerning her drug use that night and, more generally, around the time of the victim’s disappearance, as well as by her admission that she continued to associate with defendant after the alleged crimes were committed.

The victim’s remains were found with rope tied around her wrists — which were behind her back — and looped around her neck and down to her ankle in a “hogtied” position. The victim did not appear to have been wearing clothing, and the deteriorated remains of her underwear were found balled up at the top of the skeleton’s spine. A consultant with the medical examiner’s office opined that the location of the underwear was consistent with it having been inside the victim’s mouth, and testified that this could have caused asphyxiation. Several pieces of jewelry later identified as belonging to the victim were found in Krivak’s van.

- Defendant testified in his own defense and adamantly denied his guilt. Defendant also attempted to persuade the jury that the People’s main witness was not credible given her initial denial of any knowledge of the crime. To that end, the two uncharged men who the People’s main witness claimed were in the van when the victim was allegedly raped and killed testified that they were not present that evening and denied any knowledge of the crimes. Both of these witnesses admitted that they had each previously signed statements indicating that they were in the van when defendant and Krivak committed the crime, but they claimed to have made those statements only as a result of police coercion. Another friend of defendant testified that police officers tried to persuade him to sign a statement indicating that he had seen the victim with defendant and Krivak that night, but he refused because it was not true. Finally, one of the victim’s school teachers testified that she saw the victim at the mall five days after she was allegedly killed by defendant and Krivak.

The jury found defendant guilty of felony murder and rape in the first degree, and defendant was sentenced to an aggregate prison term of 25 years to life. On defendant’s appeal, the Appellate Division affirmed (117 AD3d 1076 [2d Dept 2014]). As relevant here, the Appellate Division held that the trial court had “providently exercised its discretion in denying [defendant’s] motion to introduce the proffered [third-party culpability] evidence” (id. at 1076). A Judge of this Court granted defendant leave to appeal (24 NY3d 1083 [2014]), and we now reverse.

II.

“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’ ” (Nevada v Jackson, 569 US —, —, 133 S Ct 1990, 1992 [2013], quoting Crane v Kentucky, 476 US 683, 690 [1986]; see Holmes v South Carolina, 547 US 319, 324 [2006]; People v Carroll, 95 NY2d 375, 385 [2000]). Where a defendant seeks to pursue a defense of third-party culpability at trial, evidence offered in support of that defense is subject to “the general balancing analysis that governs the admissibility of all evidence” (People v Primo, 96 NY2d 351, 356 [2001]). Thus, a court must determine whether the evidence is relevant and, if so, whether “its probative value is outweighed by the prospect of trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury” (id. at 355; see People v Negron, 26 NY3d 262, 268 [2015]). Further, “[t]he admission of evidence of third-party culpability may not rest on mere suspicion or surmise” (Primo, 96 NY2d at 357; see Holmes, 547 US at 327; People v Schulz, 4 NY3d 521, 529 [2005]). Generally, “[r]emote acts, disconnected and outside of the crime itself, cannot be separately proved to show that someone other than the defendant committed the crime” (Schulz, 4 NY3d at 529 [internal quotation marks and citation omitted]). Where, as here, the defendant makes an offer of proof to the court explaining the basis for a third-party culpability defense and connecting the third party to the crime, and the probative value of the evidence “plainly outweighs the dangers of delay, prejudice and confusion,” then it is “error as a matter of law” to preclude the defendant from presenting such proof to the jury (Primo, 96 NY2d at 357).

In People v Primo, we held that it was error to preclude third-party culpability evidence where a ballistics report linked the bullets recovered from the scene of the charged shooting to a gun used by a third party — who was identified as being present at the time of the shooting — in an unrelated assault two months later (see id.). In contrast, we have held that speculative assertions that other unidentified individuals had a motive to harm a victim are insufficient to support admission of third-party culpability evidence (see People v King, 27 NY3d 147, 157-158 [2016] [decided herewith]; People v Gamble, 18 NY3d 386, 398 [2012]). We have also upheld the preclusion of third-party culpability evidence where the defendant proffers only general evidence establishing that an identified third party has committed the same type of crime in the same general area close in time to the charged crime (see Schulz, 4 NY3d at 529). Yet, while we have held that proof connecting a third party to the crime may establish the probative value of the proffered evidence, we have never held that there must, in every case, be proof directly linking the third party to the crime scene; indeed, we have recently held that, in certain circumstances, third-party culpability evidence may be admitted absent such direct evidence (see Negron, 26 NY3d at 269).

Here, our evaluation of defendant’s third-party culpability proffer begins with Santoro’s statement, which faces a threshold evidentiary hurdle — namely, the question of whether Gombert’s declarations are admissible under the hearsay exception for declarations against penal interest. A statement may be admitted as a declaration against penal interest where: the declarant is unavailable as a witness at trial; the declarant was aware the statement was against his or her penal interest when it was made; the declarant had competent knowledge of the facts underlying the statement; and “supporting circumstances independent of the statement itself . . . attest to its trustworthiness and reliability” (People v Settles, 46 NY2d 154, 167 [1978]; see People v Shabazz, 22 NY3d 896, 898 [2013]). There can be no serious dispute that the first three of these requirements are satisfied here. It is undisputed that Gombert would have invoked his right against self-incrimination if he was called to the stand, he was certainly aware that his statements indicating that he had sexually assaulted the victim were against his penal interest, and he had competent knowledge of his own involvement in the victim’s life and death. It is the last of the required elements — the reliability of the statement — that raises a question.

With regard to that element, we have held that, “[t]o circumvent fabrication and insure the reliability of . . . statements [against penal interest], there must be some evidence, independent of the declaration itself, which fairly tends to support the facts asserted therein” (Settles, 46 NY2d at 168; see People v Shortridge, 65 NY2d 309, 313 [1985]). When considering the reliability of a declaration, courts should also consider the circumstances of the statement, such as, among other things, the declarant’s motive in making the statement — i.e., whether the declarant exculpated a loved one or inculpated someone else, the declarant’s personality and mental state, and “the internal consistency and coherence of the declaration” (Shortridge, 65 NY2d at 313). Where, as here, the statement is offered by the defendant, this element is satisfied if the supportive evidence “establishes a reasonable possibility that the statement might be true” (Settles, 46 NY2d at 169-170; see Shabazz, 22 NY3d at 898). Furthermore, “[c]ircumstances of seeming indifference may still harmonize the declarant’s statement so as to furnish the necessary link” (Settles, 46 NY2d at 169). Significantly, “[w]hether a court believes the statement to be true is irrevelant, and the question of admissibility is to be resolved without regard to the seeming strength or weakness of the People’s case” (Settles, 46 NY2d at 170).

In this case, there is no obvious motive for Gombert to falsely implicate himself; rather, it was in his best interest to keep quiet about the supposed innocence of defendant and Krivak (compare Shortridge, 65 NY2d at 313). Nor is there any evidence that Gombert had a mental condition that would explain his unprompted statements alluding to his involvement in the victim’s death. The statement itself was internally consistent and coherent, with no apparent contradictions. Most significantly, almost all of Gombert’s claims, as recounted by Santoro, were corroborated by outside sources, including the fact that Gombert knew the victim, the circumstances under which he had met her, that they had discussed having her babysit for his child, that Gombert had access to a vehicle generally matching the description of the car as given to San-toro, and that Gombert knew the other identified missing girl. Under these circumstances, the fourth element of the Settles test is satisfied. Thus, had Santoro testified at trial, Gombert’s statements to him would have been admissible.

In light of their admissibility, Gombert’s declarations connected him to the crime and, when Santoro’s proposed testimony is considered in combination with the additional proffered evidence, defendant’s third-party culpability proffer was compelling and highly probative of the question of who killed the victim. In particular, in addition to the corroboration of the individual facts in Santoro’s affidavit by statements from outside witnesses, defendant’s “reverse Molineux” evidence satisfied his burden regarding the proffer.

While unlikely to be sufficient standing alone, we have previously recognized that reverse Molineux evidence — i.e., evidence that a third party has committed bad acts similar to those the defendant is charged with committing — is relevant to, and can support, a third-party culpability proffer where the crimes reflect a “modus operandi” connecting the third party to the charged crimes (see Schulz, 4 NY3d at 528; see also People v Bunge, 70 AD3d 710, 711 [2d Dept 2010]; United States v Aboumoussallem, 726 F2d 906, 911 [2d Cir 1984]; State v Garfole, 76 NJ 445, 451, 388 A2d 587, 590 [1978] [“The same concept of relevancy which justifies submission of other-crimes evidence by the State supports it when proffered by the defendant”]). Typically, in evaluating evidence of similar acts for the presence of a modus operandi when such evidence is offered by the People, we look to whether the “similarities were unusual enough to compel the inference that the [same individual] committed both. Thus, the . . . modus operandi must be sufficiently unique to make the evidence of the uncharged crimes ‘probative of the fact that [the individual] committed the one charged’ ” (People v Beam, 57 NY2d 241, 251 [1982], quoting People v Condon, 26 NY2d 139, 144 [1970]; see People v Mateo, 93 NY2d 327, 332 [1999]; People v Allweiss, 48 NY2d 40, 47 [1979]). Although defendant urges us to adopt a more relaxed standard for such proof when it is offered on behalf of the defense (see e.g. Aboumoussallem, 726 F2d at 911-912; United States v Stevens, 935 F2d 1380, 1404 [3d Cir 1991]; State v Scheidell, 227 Wis 2d 285, 304, 595 NW2d 661, 671 [1999]), we have no need to do so here because defendant’s proof meets the ordinary standard for evaluating such evidence.

Specifically, defendant’s written proffer tended to demonstrate that at least two other victims of sexual assaults by Gombert — both of whom, like the victim here, were known to Gombert prior to the assaults and were children at the relevant times — alleged that Gombert had sexually assaulted them, on some occasions in the woods, while restraining their hands (in at least one instance with a rope in a “hogtied” fashion), and shoved articles of clothing in their mouths. Taken together, these characteristics of the alleged rapes and, in particular, the shoving of the clothing in the victims’ mouths — which is consistent with the state of the victim’s body when it was found and the prosecution’s theory of the potential cause of her death — are sufficiently unique for those bad acts to qualify as modus operandi evidence connecting Gombert to the victim’s death (see Allweiss, 48 NY2d at 48). Thus, to the extent defendant has proffered allegations of sexual assault against other victims containing this combination of characteristics, the reverse Molineux evidence supports his third-party culpability proffer.

Viewed in its totality, if proved through appropriate witness testimony at trial, defendant’s proffer demonstrated that: Gombert knew and had access to the victim; he was familiar with the road near which the victim’s remains were found; he had a history of allegedly assaulting other young girls with whom he was familiar in a manner uniquely similar to the prosecution’s theory of how the victim was killed; and that Gombert allegedly made statements indicating that he had sexually abused the victim around the time of her disappearance and that defendant and Krivak were prosecuted for crimes that he had committed. As in Primo, this evidence was sufficiently probative to be admissible (see 96 NY2d at 357). Contrary to County Court’s determination and the dissent’s position, defendant’s inability to place Gombert with the victim on the day, or at the precise location, of her disappearance does not eviscerate the probative value of defendant’s third-party culpability evidence or render it speculative (cf. Negron, 26 NY3d at 269). Such evidence would undoubtedly strengthen any proffer. However, the strength of the evidence necessary to establish the admissibility of proof relating to a third party’s culpability will depend, among other things, on the nature of the crime. Here, inasmuch as the exact time and place of the crime are subject to dispute given the circumstances of the victim’s disappearance and the lengthy period of time that elapsed before her body was discovered — which explains the absence of direct proof in defendant’s proffer tying Gombert to the crime scene — Gombert’s declarations against penal interest are sufficiently probative. Thus, although a jury would be free to discredit Santoro’s account of Gombert’s admissions and defendant’s theory that Gombert was actually the perpetrator, it was error to preclude him from presenting the evidence in question because “its probative value plainly outweigh [ed] the dangers of delay, prejudice and confusion” (Primo, 96 NY2d at 357; cf. Negron, 26 NY3d at 269; compare King, 27 NY3d at 157-158; Gamble, 18 NY3d at 398; Schulz, 4 NY3d at 528).

In so holding, we do not alter the rules of admissibility for third-party culpability evidence. The facts as presented in Primo do not, as the dissent implies, constitute the minimum proof required for the admission of evidence of third-party culpability. It is true that the defendant in Primo was able to connect the gun used in commission of the charged shooting to a third party, who the shooting victim placed at the scene (see 96 NY2d at 357). Tellingly, however, we have no victim in this case who can identify those present at the time of death, and the instrument of the victim’s death cannot be connected to either defendant or Gombert. This case is, therefore, plainly distinguishable from Primo and, understandably, the type of third-party culpability proof available to defendant here is different; nevertheless, it does not lack in probative value or fail to establish Gombert’s connection to the crime.

Nor is our holding contrary to our ruling in People v Schulz, where we determined that the trial court properly precluded evidence of third-party culpability (4 NY3d at 528). At his trial for robbery in that case, the defendant sought to admit a photograph of a third party who had committed several robberies in the same general area before and after the robbery for which the defendant was charged, and who allegedly bore a resemblance to the defendant. We upheld the court’s preclusion of third-party culpability evidence in Schulz because nothing in the defendant’s proffer “show[ed] a modus operandi, a witness who saw [the third party] at the scene [,] or even a connection between the getaway car and [the third party]” (id. at 528). Put simply, the third-party proffer there consisted of noth-Iing more than the fact that the third party had committed other crimes of the same general type, but not necessarily sharing particularly similar or unique features. By contrast, here, as we explained, defendant has offered evidence of a unique modus operandi that potentially connects Gombert to the crime, and the statements Gombert allegedly made to San-toro — as well as other proof — connect him to the victim at the approximate time of her disappearance. Thus, defendant’s third-party proffer sufficiently supplied the key elements that we found lacking in Schulz. The trial court should have permitted defendant to submit admissible proof at trial to support his third-party culpability defense.

Although the evidence presented by the People was arguably overwhelming, we cannot say, on these facts, that the error in curtailing defendant’s ability to present a complete defense through the introduction of third-party culpability evidence was harmless (see People v Osorio, 75 NY2d 80, 87 [1989]; People v Crimmins, 36 NY2d 230, 242-243 [1975]). Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Fahey, J.

(dissenting). For the first time, we are allowing a theory of third-party culpability to go forward based on an offer of proof consisting entirely of hearsay. Defendant’s offer of proof fell far short of that presented in People v Primo (96 NY2d 361 [2001]), the only case before today in which this Court has held that a trial court abused its discretion as a matter of law in precluding such evidence. This decision imposes an undue restraint upon the discretion of trial courts to weigh the probative versus prejudicial value of third-party culpability evidence and make a reasoned decision regarding its admissibility. I respectfully dissent.

Howard Gombert’s alleged statement to Joseph Santoro was required to surmount a threshold evidentiary hurdle by satisfying the four-pronged test of the hearsay exception for declarations against penal interest. The first three elements of that test were met. I disagree with the majority, however, that Gombert’s alleged statements to Santoro satisfied the final prong — that defendant presented “supporting circumstances independent of the statement itself ... to attest to its trustworthiness and reliability” (People v Settles, 46 NY2d 154, 167 [1978]). Even under the more lenient standard applied when a defendant seeks to introduce a declaration against interest as exculpatory evidence (see People v Soto, 26 NY3d 455, 462 [2015]), the fourth factor of the test, which is “the most important aspect of the exception” (.People v Shabazz, 22 NY3d 896, 898 [2013] [internal quotation marks omitted]), was not met.

Defendant’s proffered evidence of third-party culpability fell into four categories. First, defendant sought to introduce Gombert’s alleged statements to Santoro. Second, defendant sought to introduce other evidence allegedly connecting Gombert to the crime, which consisted of the statements of Anita Albano and Gombert’s former girlfriend. Gombert’s former girlfriend told police that shortly after the victim’s disappearance, Gombert told her that he had given the victim a ride to some unspecified place on some unspecified day around the time that the victim went missing. Gombert did not tell her that he had committed a crime or that he was involved in the victim’s disappearance. Further, although Albano testified at the pretrial hearing, her testimony did not inculpate Gombert, inasmuch as she testified that the red car she saw the victim enter on the day of her disappearance was not the car of Gombert’s former girlfriend, and that Gombert was not the young man whom Albano saw driving the red car. Third, defendant offered statements from certain witnesses who told police that Gombert knew the victim and that the victim had offered to babysit for Gombert. Finally, defendant sought to introduce “reverse Molineux” evidence regarding Gombert’s history of sexual assaults.

Every piece of evidence that defendant presented in an attempt to demonstrate the reliability of Gombert’s statements to Santoro was hearsay. Gombert’s statement to his former girlfriend that he had given the victim a ride was hearsay, as was his former girlfriend’s statement to police itself. Statements from witnesses asserting that Gombert knew the victim and that she had offered to babysit were hearsay. The proffered “reverse Molineux” evidence was also hearsay. Defendant offered that proof through a defense investigator, an obviously interested party. Defendant did not offer any statements, sworn or unsworn, from Gombert’s victims themselves.

To be clear, I am not suggesting that a defendant seeking to introduce evidence of third-party culpability must present all evidence in support of that application in admissible form at the pretrial stage. Here, nothing was in admissible form, except for the testimony of Albano, which did not support defendant’s application.

The quality of the proof the defendant offers must be considered in evaluating whether the trial court abused its discretion as a matter of law in precluding the evidence. Defendant did not submit an affidavit from Gombert’s former girlfriend, or any of the witnesses who defendant asserted could establish Gombert’s relationship with the victim. Defendant did not present an affidavit from any of Gombert’s victims to support his reverse Molineux application, and he further failed to present an affidavit from the defense investigator who allegedly interviewed these victims. In short, defendant asked the trial court to admit Gombert’s statement to Santoro not based upon “sufficient competent evidence independent of the [statement itself] to assure its trustworthiness and reliability” (People v Brensic, 70 NY2d 9, 15 [1987]), but rather based upon questionable hearsay.

Defendant has acknowledged that he will be required to offer the live testimony of Gombert’s victims and any other appropriate witnesses upon retrial. In his pretrial application, however, defendant did not indicate that any of these witnesses were willing to testify at trial. Faced with the unreliable and speculative nature of the evidence defendant offered in an attempt to support the trustworthiness of Gombert’s statement to Santoro, the trial court did not abuse its discretion as a matter of law in concluding that defendant failed to satisfy the fourth prong of the Settles test (see Settles, 46 NY2d at 167).

Even assuming Gombert’s alleged statements to Santoro qualified as a declaration against penal interest, I nevertheless cannot conclude that the trial court abused its discretion as a matter of law in precluding evidence of third-party culpability.

In Primo, we rejected the “clear link” standard for admissibility of third-party culpability evidence that had been employed by the Appellate Division, which generally required the defendant to show a “clear link” between the third party and the crime in question, in favor of a test “described in terms of conventional evidentiary principles” (see Primo, 96 NY2d at 354-355). Under that test, the trial court should conduct a discretionary balancing of the probative value of the evidence against its potential for “trial delay, undue prejudice to the opposing party, confusing the issues or misleading the jury” (id. at 355). We noted that, “[t]o the extent that the ‘clear link’ standard implies no more than an abbreviation for the conventional balancing test, it presents no problem” (id. at 356).

Even under the proper test, however, “remote evidence of a third party’s culpability — though relevant — will not be sufficiently probative to outweigh the risk of trial delay, undue prejudice or jury confusion” (id. at 356). We cautioned in Primo that, in the context of third-party culpability evidence, the “risks of delay, prejudice and confusion are particularly acute,” and that if these risks are not “weighed against the probative value of the evidence, the fact-finding process would break down under a mass of speculation and conjecture” (id. at 356-357). For these reasons, “[t]he admission of evidence of third-party culpability may not rest on mere suspicion or surmise” (id. at 357).

The evidence of third-party culpability defendant offered here was far weaker than the evidence offered by the defendant in Primo. There, the shooting victim acknowledged that the third party was at the crime scene at the time of the shooting. Significantly, a ballistics report linked the bullets recovered from the crime scene to a gun used by the third party two months later in an unrelated crime (see Primo, 96 NY2d at 353-354). We concluded that the probative value of the ballistics report, “coupled with proof that [the third party] was at the scene of the shooting, . . . plainly outweigh [ed] the dangers of delay, prejudice and confusion” (id. at 357). We therefore held that the trial court improperly precluded the ballistics report as evidence of third-party culpability (see id.).

Here, by contrast, there is no physical evidence connecting Gombert to the crime, and no witness placing Gombert with the victim on the day of her disappearance, let alone at the crime scene. The reverse Molineux evidence presented by defendant, although it points to Gombert as a heinous individual, does not persuade me that the trial court abused its discretion as a matter of law. Defendant’s investigator allegedly spoke to several of Gombert’s victims, and they told the investigator that Gombert only sometimes restrained their hands behind their backs or shoved articles of clothing in their mouths during his sexual assaults (cf. People v Beam, 57 NY2d 241, 252 [1982] [“Although there are minor differences in each attack, the pattern of the initial encounter and the specifics of the sexual attacks, all of which followed the same pattern, indicate a unique modus operandi”]).

This Court has generally left the resolution of issues surrounding third-party culpability to the discretion of the trial court, unless the evidence of third-party culpability was so unmistakably strong that it was an abuse of discretion for the trial court not to allow the jury to hear it (see Primo, 96 NY2d at 357). Where the defendant’s proffer has fallen short of the strong proof of third-party culpability presented in Primo, this Court has not interfered with the discretionary determination of the trial court (see People v King, 27 NY3d 147 [2016] [decided herewith]; People v Gamble, 18 NY3d 386, 398-399 [2012], rearg denied 19 NY3d 833 [2012]; People v Schulz, 4 NY3d 521, 529 [2005]). This Court should not interfere in those discretionary determinations unless the evidence, like that presented in Primo, is so compelling that the trial court clearly abused its discretion as a matter of law in precluding it. I conclude that the evidence offered by defendant here does not rise to that level.

Although defendant will finally be required to present proof of third-party culpability in admissible form at a new trial, the trial court must otherwise exercise its discretion to ensure that “the fact-finding process [does not] break down under a mass of speculation and conjecture” (Primo, 96 NY2d at 357). The determination of admissibility can only be answered at trial. The trial court should be allowed to exercise its discretion upon retrial with respect to these issues. Faced with the prospect of another appellate reversal, however, the trial court here, and other trial courts attempting to comply with the Court’s ruling in the future, will be reluctant to do so.

Defendant’s remaining contentions are without merit. I would affirm the order of the Appellate Division.

Judges Pigott, Rivera and Abdus-Salaam concur; Judge Fa-hey dissents in an opinion; Chief Judge DiFiore and Judge Garcia taking no part.

Order reversed and a new trial ordered.

      . Gombert was incarcerated for crimes that included attempted sexual assault of an eight-year-old girl and third-degree sexual assault of one of his girlfriends (see State v Gombert, 80 Conn App 477, 479, 836 A2d 437, 441 [2003]; Gombert v Warden, 2013 WL 4873470, *1, 2013 Conn Super LEXIS 1895, *1 [Aug. 22, 2013, No. CV104003855S]).

      . Almost all of these facts were provable without resort to hearsay and— contrary to the dissent’s suggestion — the trial court did not find the form of defendant’s offer of proof to be insufficient in determining that Gombert’s admissions were unreliable.

      . While defendant did not present this proof to the court through affidavits of the other alleged victims, we note that the court did not request that he do so and, while that may have been preferable, we do not find this omission to be fatal to his proffer. Further, defendant offered to have his defense investigator testify to the victims’ statements in support of his proffer. Defense counsel has acknowledged that, if he had been permitted to offer the third-party culpability evidence at trial, it would have been necessary to have offered the testimony of the appropriate witnesses, themselves, so as to avoid any hearsay problems.