People v. Khan

200 A.D.2d 129, 613 N.Y.S.2d 198, 1994 N.Y. App. Div. LEXIS 5993
Appellate Division of the Supreme Court of the State of New York·Decided June 6, 1994·Published·Cited by 18 cases

Opinion

OPINION OF THE COURT

Lawrence, J.

The issue to be decided on these five appeals is whether the defendants were denied their right to confrontation and to a fair trial when the redacted confessions of two nontestifying defendants were admitted into evidence at their joint trials. I conclude that the confessions were not sufficiently redacted, so that, when coupled with other testimony adduced at trial, those confessions inferentially incriminated the nonconfessing codefendants. With respect to the defendants Farook Khan and Tauqeer Gul, this error was not harmless and their convictions must be reversed.

I

In the early morning hours of January 12, 1990, Deepak Gawri, a grocery store owner and drug dealer, was kidnapped, robbed, and murdered, and his body left slumped over the steering wheel of his car on a deserted street in Queens. Coincidently, a couple of days earlier, the defendant Rehman Sadruddin had begun negotiating the purchase of large quantities of drugs from an individual who, unbeknownst to Sadruddin, was an undercover agent of the Drug Enforcement Administration (DEA). On the morning following the murder, Sadruddin met with the agent, who surreptitiously recorded the meeting. During the course of the meeting, Sadruddin revealed that he had been up all night because he and three accomplices had murdered an "Indian” man who owned a grocery store in Queens. The man had owed one of the participants $5,000 as the result of a drug transaction. Sadruddin elaborated that the perpetrators picked the victim up at his store at approximately 3:00 a.m., drove him to a residential neighborhood in Queens, and shot him. Then they took his day’s receipts, $3,000, in partial satisfaction of the [132]*132debt. Sadruddin further stated that he drove the getaway van, which he left in a nearby lot. In fact, according to Sadruddin, at 9:00 that morning he had driven by the location where he and his compatriots had left the body and the body was still there. After the meeting the agent notified the Queens Homicide Unit. He subsequently learned that, in fact, the body of an Indian male had been discovered.

On January 16, 1990, the agent, accompanied by another undercover DEA agent, again met with Sadruddin regarding the purchase of drugs. During the course of the meeting, Sadruddin indicated that one of the people who was involved in the murder was interested in purchasing silencers for the guns that had been used. The undercover agents indicated that they could provide the silencers. The next day the agents met with Sadruddin, accompanied by the codefendants Javed Khan and Faisal Saleem. The agents received a 9 millimeter pistol from Javed Khan and a .22 caliber pistol from Saleem to be fitted for silencers. Khan indicated that both weapons had been used recently "to take care of the problem”. These defendants were arrested shortly after this last meeting.

II

After their arrests both Saleem and Sadruddin made statements to the police in which they inculpated themselves and the other defendants in Gawri’s murder. The statements named each of the participants, but, as introduced at trial, were redacted so that the names of the codefendants were replaced by neutral pronouns. Saleem and Sadruddin both told the police that the group originally met on Wednesday evening, January 10, 1990. The plan to rob Gawri was supposed to take place on Wednesday, but when they arrived at the store that evening, it was closed. They tried again the next evening, when, according to Saleem, who made both an oral and a written statement, he was in a van with others and was told that they would drive to Gawri’s store, where some of them would be dropped off and the others would meet them later at a prearranged location. That evening they went to Gawri’s store; then all but one of them left in the van. In the early morning hours they returned to the store. Then, as previously arranged, Saleem and some others left the store and went to the prearranged location in the van. Sometime later Gawri’s car arrived at the location. Five to ten minutes after its arrival Saleem heard three shots, and then saw [133]*133Zulfigar Ali, who later became the prosecution’s principal witness, and another run from the car toward the van. Two others followed, walking. Once they were all in the van they dropped one person off. That person told them all to go to their own homes. Then the van was driven to another location, where all but the driver were let out. The driver brought the van to another location and then met up with the others. Then everyone was driven home.

Sadruddin’s statement to law enforcement officials was similar to that of Saleem, but lacking in the detail found in Saleem’s statement. Sadruddin admitted driving the van that dropped several persons off at Gawri’s store on the evening before the murder. According to Sadruddin, Zulfigar Ali, a clerk, was working in the store. Sadruddin drove the van to the prearranged location. At some point thereafter Gawri’s car arrived. Sadruddin told law enforcement officials that the person in the front passenger seat shot Gawri in the head, and that the other participants were in the back seat of Gawri’s car. After the shooting, the occupants of Gawri’s car got into the van, and the money found in Gawri’s pants pocket was divided amongst the participants. After the money was divided Sadruddin parked the van in a parking lot near Queens Boulevard, and the group left on foot.

Ill

On February 1, 1990, Rehman Sadruddin, Faisal Saleem, Javed Khan and his brother Farook, Tauqeer Gul, Dinesh Khanna, and Jay Rehan were charged in a multicount indictment with the crimes committed against Gawri, as well as the kidnapping of Zulfigar Ali, a clerk at Gawri’s store. Prior to the trial, the defendants moved to sever their trials from those of their confessing codefendants. The trial court denied the severance motions, and redacted the statements of Saleem and Sadruddin, as aforementioned, by replacing the codefendants’ names with neutral pronouns. All seven were tried jointly, with Rehan electing to have his fate decided by the court while the other six were tried by the Judge and a jury. Limiting instructions to the effect that the statement made by each perpetrator could only be considered as evidence against the person who made the statement were repeated throughout the trial, as well as in the final charge. Also introduced into evidence at trial were the tapes of the previously described meetings between the DEA agents and Sadruddin, Javed [134]*134Khan, and Saleem. The jury was given limiting instructions with respect to this evidence as well.

The principal evidence against the remaining defendants was the testimony of Zulfigar Ali, the clerk, who knew all of the defendants. In fact, Ali had introduced Javed Khan to Sadruddin, a relative of his, and the two became good friends. Ali’s testimony essentially served to fill the gaps which were created by the redacted statements of Sadruddin and Saleem. Ali identified each of the defendants who was in the van, and those who rode in the car, and described their roles in the crime. Ali testified that several days before the crime Javed Khan got him a job at the deli owned by the victim, from which groceries and drugs were sold. Although the salary was considerably less than that which Ali had been earning as a cab driver, he accepted the position. The codefendants, Farook Khan and Tauqeer Gul, were also employed there.

Ali testified that he worked from 6:00 a.m. on Thursday, January 11, 1990, until 3:00 the following morning, having covered for

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People v. Khan, 200 A.D.2d 129, 613 N.Y.S.2d 198, 1994 N.Y. App. Div. LEXIS 5993 (N.Y. Ct. App. 1994).

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