
    The People of the State of New York, Respondent, v David Safian, Appellant. The People of the State of New York, Respondent, v Robert F. Miner, Appellant.
    Argued October 25, 1978;
    decided December 6, 1978
    
      POINTS OF COUNSEL
    
      Herman Kaufman, Lewis R. Friedman and Jack T. Litman for appellant in the first above-entitled action.
    I. The court’s charge to the jury improperly omitted the lesser included offense of manslaughter in the first degree, requested by the defense, and which was reasonably raised by the evidence. (People v Henderson, 41 NY2d 233; People v Johnson, 39 NY2d 364; People v Shuman, 37 NY2d 302; People v Stanfield, 36 NY2d 467; People v Cionek, 35 NY2d 924; People v Hayes, 43 AD2d 99; People v Mussenden, 308 NY 558; People v Moran, 246 NY 100; People v Tai, 39 NY2d 894; Dombrowski v Somers, 41 NY2d 858.) II. Segregated from the evidence received against Robert Miner, the evidence legally admissible against David Safian was insufficient to convict him of the charges. (People v Wachowicz, 22 NY2d 369; People v Brown, 26 NY2d 88; California v Green, 399 US 149; Bruton v United States, 391 US 123; Barber v Page, 390 US 719.) III. The denial of Safian’s motion for a severance requires a new trial, because of the substantial risk that the jury’s deliberations were improperly affected by the incriminating and unredacted references to Safian in Miner’s confessions and admissions. (People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v Bornholdt, 33 NY2d 75; People v Cavanaugh, 48 AD2d 949; Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; Jackson v Denno, 378 US 368; People v Stanbridge, 26 NY2d 1; People v Baker, 26 NY2d 169; Roberts v Russell, 392 US 293.) IV. The prosecutor’s remarks in summation urging the jury to consider Miner’s confession against Safian deprived him of a fair trial. (People v Baker, 23 NY2d 307; Bruton v United States, 391 US 123; Delli Paoli v United States, 352 US 232; People v Adams, 21 NY2d 397; People v Lombard, 4 AD2d 666.)
    
      Richard Goldsweig for appellant in the second above-entitled action.
    I. The trial court committed reversible error in denying Miner’s application for a separate trial apart from the codefendant, David Safian. (People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v Burrelle, 21 NY2d 265; Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; People v Anthony, 24 NY2d 696; People v Stanbridge, 26 NY2d 1; People v Donovan, 13 NY2d 148; People v Leyra, 302 NY 353; Harrington v California, 395 US 250.) II. Miner was deprived of a fair trial in view of the prosecutor’s prejudicial remarks during summation. (Bruton v United 
      
      States, 391 US 123; People v Anthony, 24 NY2d 696; People v Baker, 23 NY2d 307; People v Adams, 21 NY2d 397.) III. The trial court committed reversible error in allowing the admission into evidence of Robert Miner’s oral and written confessions made during the evening of May 22, 1976, and the fruits thereof. (People v Stephen J. B., 23 NY2d 611; People v Anderson, 42 NY2d 35; People v Drummond, 40 NY2d 990; People v Everett, 10 NY2d 500; People v Leyra, 302 NY 353; People v McQueen, 18 NY2d 337; People v Caserino, 16 NY2d 255; People v Jackson, 41 NY2d 146; People v Donovan, 13 NY2d 148.) IV. The trial court committed reversible error when it failed to charge manslaughter in the first degree. (People v Henderson, 41 NY2d 233; People v Tai, 39 NY2d 894; People v Battle, 22 NY2d 323; People v McDonnell, 92 NY 656.)
    
      Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent in the first and second above-entitled actions.
    I. Defendants’ motions for severance were properly denied. (People v Payne, 35 NY2d 22; People v McNeil, 24 NY2d 550; People v Wheatman, 31 NY2d 12; Bruton v United States, 391 US 123.) II. The prosecutor’s summation was in all respects proper. (People v Ryan, 263 NY 298.) III. The Trial Judge properly refused to charge manslaughter in the first degree. (People v Ozarowski, 38 NY2d 481; Foster v People, 50 NY 598.) IV. The proof against Safian that Miner killed the victim was sufficient. V. The confessions given by Miner on May 22, 1975 were properly admitted. (People v Buxton, 44 NY2d 33; People v Stephen J. B., 23 NY2d 611.)
   OPINION OF THE COURT

Chief Judge Bkeitel.

Defendants David Safian and Robert Miner appeal from affirmances of their convictions for the murder of Safian’s wife by Miner, a killer unknown to the wife and confessedly hired by Safian, and for possession of a weapon. At their joint trial, the confession of each defendant was admitted, with repeated and explicit instructions by the Trial Justice that each defendant’s confession was to be considered against the confessing defendant only, and not against the codefendant.

The issue is whether, despite the substantial identity of the two confessions, failure to grant a severance resulted in a trial hopelessly tainted by the admission of the codefendants’ confessions (see Bruton v United States, 391 US 123).

There should be affirmances as to both defendants. Each defendant’s confession contained the same material facts. There was, therefore, no significant risk that either defendant would be improperly prejudiced by admission of his codefendant’s confession (see People v McNeil, 24 NY2d 550, 552-553, remittitur amd 25 NY2d 888, cert den sub nom. Spain v New York, 396 US 937).

There is no dispute in this court, as there was none in the Appellate Division, that defendant Miner suffered no significant prejudice from admission of his codefendant’s confession. It is the case of defendant Safian that has provoked dissent, both in the Appellate Division and in this court. Yet the same principles apply, and those principles permit, and require, affirmance of Safian’s conviction as well.

Defendant David Safian, separated from his wife for a year, unsuccessfully sought reconciliation in April, 1975. When he was rebuffed, he told his wife that their daughter, one of her two children, would eventually live with him and that, according to the testimony of a friend of the wife, the daughter "would not live with Debbie”, the wife.

Meanwhile, on March 5, 1975, defendant Safian, aged 27, had met Robert Miner, aged 16, who was then, for no known reason, kicking and damaging Safian’s automobile. Safian had Miner arrested, but Miner later apologized and had the car repaired. Still later, Safian met Miner in a bar and, as Safian confessed in writing, told him that he was "looking for some crazy guy to take care of this girl I know”. Miner, eager to buy a new motorcycle, evidently met Safian’s requirements, and asked for $1,500. The two ultimately struck a bargain on a price of $1,000. At least one witness described a meeting in a bar between Safian and Miner on April 24, 1975. Then, in preparation, Safian showed Miner his wife’s home, the restaurant at which she worked as a waitress, and her automobile. All of this, except for the dates, comes from Safian’s written confession.

On May 2, 1975, eight days after Safian and Miner had been seen together in a bar, Deborah Safian was stabbed 21 times in front of her home. A neighbor heard her screams for help, and then saw her fall. A man on a motorcycle, wearing a head and face helmet, was seen leaving the scene. Mrs. Safian was immediately taken to a hospital, where she soon died.

Evidence was introduced to establish that the motorcycle on which the assailant fled resembled one owned by Miner. Blood was found on Miner’s motorcycle. Also, Miner owned a jacket similar to the one worn by Mrs. Safian’s killer. The jacket too was stained, with blood of the same type as the victim’s. This certainly suffices with respect to Safian’s culpability to tie Miner in as the person who committed the crime on behalf of Safian.

Actually even the evidence last discussed was not essential to establish that the crime had been committed at Safian’s behest. Safian’s confession did that. The statute, a restatement of the long-established law in this State, provides only: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed” (CPL 60.50; e.g., People v Cuozzo, 292 NY 85, 91-93 [Desmond, J.], and cases there collected arising under the predecessor statute to CPL 60.50). Thus it has always been true that a confession may provide all the necessary proof of defendant’s culpability, and the statute only requires that the confessed crime be proven to have occurred by independent evidence without any other connection with the defendant or his confession.

Moreover, there is the proximity in time between Safian’s admitted meetings with Miner, one supposedly in late April, 1975, and the occurrence of the May 2 homicide they had discussed in those meetings. There is also the coincidence of place, Safian having said that he had pointed out to Miner the victim’s residence and automobile. In short, if, as is not the case, the confession required "corroboration” beyond the fact of the corpus delicti, there was ample evidence to "corroborate” the confession.

But the end is not yet. After the murder had been committed, Miner, according to Safian’s confession, met Safian "a couple of times” in the same bar in which the agreement to kill had been made. Miner asked Safian for his money and sought to make an appointment to arrange delivery. Before payment could be made, however, Safian confessed to the police. While others may raise doubts whether the intentional homicide of the wife was attributable to Safian’s agreement with Miner, Safian had no such doubts. That was shown by his description of his posthomicide meetings with Miner, in which Miner asked to be paid. And, as discussed earlier, a confession analytically need not be "corroborated” but only supported by an independently proven corpus delicti (People v Cuozzo, supra).

Thus, on the evidence admissible against Safian, who did not testify and offered no evidence after the People rested, the proof was overpowering that Safian had hired Miner to kill his wife, and that she had in fact been intentionally killed. Entirely superfluous to certitude as to Safian’s guilt was any material contained in Miner’s confession, and admitted only against Miner.

Of course, it is now established law that when introduction in evidence of the extrajudicial confession of a codefendant not testifying and not subject to cross-examination adds substantial weight to the prosecution’s case against another defendant, that defendant is denied his constitutional right to confrontation (Bruton v United States, 391 US 123, 127-128, supra). (See, also, Nelson v O’Neil, 402 US 622, 628, noting that the Supreme Court has never extended Bruton beyond its specific holding. The statement is still true.) The rule is based on the assumption that even when limiting instructions are given, jurors may not be capable of ignoring or willing to ignore portions of a codefendant’s confession that inculpate another defendant (Bruton v United States, supra, esp pp 135-136).

There are, of course, means of avoiding the prejudice contemplated in the Bruton case. Thus, when confessions of codefendants are involved, severance and separate trials will sometimes be appropriate and even mandatory (see CPL 200.40, subd 1). In other cases, redaction of offending portions of the confession or confessions may provide a satisfactory solution (see People v Boone, 22 NY2d 476, 485-486, cert den sub nom. Brandon v New York, 393 US 991). Neither solution, however, is ideal, for redaction is not always possible, and severance creates problems of its own, not the least of which is duplication of effort on the part of court, prosecutor, and witnesses.

The Bruton rule is not absolute, nor should it be. It is a rule based on the probability of prejudice by inadmissible "hearsay”, and when that probability is negligible, as in this case, admission of a codefendant’s confession, subject of course to proper instructions, does not require reversal (see Harrington v California, 395 US 250, 253-254; Brown v United States, 411 US 223, 231-232; Schneble v Florida, 405 US 427, 429-432; see, also, People v Baker, 26 NY2d 169, 172-173).

This court, in accordance with these principles, has squarely held that "where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his codefendants”, the Bruton rule does not require reversal of a conviction (People v McNeil, 24 NY2d 550, 552, supra; see People v Benzinger, 36 NY2d 29, 34-35; see, also, People v Payne, 35 NY2d 22, 27-28). A similar rule has been applied in the Second Circuit Court of Appeals (see, e.g., United States ex rel. Stanbridge v Zelker, 514 F2d 45, 48-49, cert den 423 US 872; United States ex rel. Catanzaro v Mancusi, 404 F2d 296, 300, cert den 397 US 942). It has also been accepted in other Federal Courts of Appeals (see, e.g., Mack v Maggio, 538 F2d 1129, 1130-1131 [CCA 5th]; United States v Walton, 538 F2d 1348, 1352-1354 [CCA 8th], cert den 429 US 1025; United States v Spinks, 470 F2d 64, 65-66 [CCA 7th], cert den 409 US 1011; Metropolis v Turner, 437 F2d 207, 208-209 [CCA 10th]; but see Randolph v Parker, 575 F2d 1178, 1182-1184 [CCA 6th]; United States v Di Gilio, 538 F2d 972, 982 [CCA 3d], cert den sub nom. Lupo v United States, 429 US 1038). In the instant case, the joint trial of two confessed killers provides no reason in law or justice for departing from the established rule.

Safian’s confession is susceptible of only one interpretation: Safian hired Miner to kill his wife. True, in his confession, Safian said he had told Miner he was "looking for some crazy guy to take care of this girl I know”. But it is of no consequence that Safian used the euphemism of the street, "take care of’, instead of the blunt "kill”. It is disingenuous to contend, as does the dissent, that any logical or linguistic ambiguity was created by the phrase. If any confirmation were necessary, it was provided later in Safian’s confession.

In discussing payment after the homicide, Safian adopted the view that Miner had been "crazy” only in "the way he did it”. Thus, in his confession Safian had stated that he had told Miner "he [Miner] was crazy, he was sick.” He added in his confession, "I don’t know maybe, the way he did it.” In short, his objection was to the "way” the 16-year-old Miner "did it”, not to the result produced. Never did Safian, in his confession, say that he did not wish his wife killed.

Thus, without Miner’s confession, there is overwhelming evidence that Safian hired Miner to kill his wife, and that the wife was indeed intentionally killed. Certainly no more is needed to support the jury’s verdict against Safian. More important, however, is that Miner’s confession, although it provides additional detail about the killing itself, adds no material inculpatory evidence against Safian not already contained in Safian’s confession.

The Bruton rule, as noted above, is designed to prevent conviction of a defendant based in part on the jury’s knowledge of a codefendant’s inculpatory confession — evidence which may weigh heavily in the mind of the jurors despite its legal inadmissibility against defendant (see Bruton v United States, 391 US 123, 126, supra). How much more persuasive than a codefendant’s confession, however, would be defendant’s own confession to the crime charged. Presented with Safian’s own detailed written confession, the risk that jurors would be unduly prejudiced by anything added in Miner’s confession vanishes (see People v McNeil, 24 NY2d 550, 552-553, supra, quoting United States ex rel. Catanzaro v Mancusi, 404 F2d 296, 300, supra).

It is of course true that a codefendant’s confession is inadmissible against defendant not just because it is prejudicial — much admissible evidence is to some extent prejudicial— but because defendant may be left without the opportunity to confront and cross-examine his accuser. But when the co-defendant’s confession in narrating the operative facts tracks almost exactly defendant’s own story, the right to confront and cross-examine is of diminished usefulness (see United States v Spinks, 470 F2d 64, 66, supra). Thus, it would have been of little benefit to Safian to confront Miner about his confession when Safian himself had admitted the same facts albeit with different versions of street language. The right to confrontation, the constitutional underpinning of the Bruton rule, provides therefore no basis for reversal of Safian’s conviction of the cold-blooded, hired killing of his wife.

There was, it must be conceded, an unfortunate reference in the prosecutor’s summation, in effect characterizing defendants as partners and indicating that "[statements made by or acts done by one partner are binding upon the other.” Objection was taken and overruled by the court. The prosecutor’s statement of law was, of course, erroneous, and had such statements pervaded the summation reversal might be required (see People v Baker, 23 NY2d 307, 318). But the error was isolated, and the Trial Justice’s careful instructions in his full charge vitiated any prejudice to defendant. Moreover, in light of the insurmountable case made against Safian, this one slip by the prosecutor would amount, at best, to harmléss error.

Once the solution to the Bruton issue is reached as discussed above, the defense contention, adopted by the dissent, that defendant was entitled to a charge of lesser included crimes evaporates. If Safian’s confession be accepted, as it must have been, the only crime of which Safian could be guilty, on any view of the evidence, was that of intentional murder (see CPL 300.50, subd 1).

Neither justice, logic, nor practical experience requires severance of the trials of codefendants when live testimony of witnesses at trial is admissible against defendants and each defendant has made a full pretrial confession relating to the same material facts. Under such circumstances a joint trial does not improperly prejudice either defendant, nor does it deprive either of any legal right of confrontation. No two or more confessions, unless contrived, will be identical in language or detail, least of all among people who speak and think in street language. It is enough that their purport, in the vernacular, idiom, street language, or whatever kind of language, used, be the same. In this case the purport of the two confessions is the same and they mesh with respect to enough material elements to provide the identity required by the exceptions to the Bruton rule.

Accordingly, the orders of the Appellate Division should be affirmed.

Fuchsberg, J.

(concurring as to Miner and dissenting as to Safian). The majority ignores the principle, so simply and forcefully put by the late Justice Hugo Black, that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law” (Green v United States, 365 US 301, 309). As we read the record, David Safian, like him or not, did not get a fair trial. When that happens to anyone in our society, the rights of all are diminished. Therefore, though the entire court agrees that Robert Miner’s conviction of murder should stand, my fellow dissenters and I believe Safian is entitled to a new trial.

Inescapable prejudice to Safian was bound to flow from the impermissible introduction of Miner’s statement, which, because Miner did not testify, was not subject to the test of cross-examination. Contrary to the self-proving premise that animates the majority’s opinion, Safian’s own confession raised an important and reasonable question for the jury as to whether Safian intended that the plot against his wife have fatal or nonfatal consequences. Either inference was possible and it was for the jury to decide which one to draw. Safian’s defense to the murder charge, in fact, was premised on the contention that he lacked any intent to kill and, consistent with that position, his counsel requested a charge on the lesser charge of manslaughter. But the prosecution’s use of the Miner statement was calculated to, and apparently did, condition the minds of the jurors to accept the idea that Safian planned the killing. This was error of constitutional magnitude.

Because the majority’s exegesis of Safian’s confession is so conclusory, we preface our analysis by setting forth the heart of both confessions as summarized by the Appellate Division. Safian’s confession is presented first (59 AD2d, at pp 23-24):

"Miner met Safian at the bar. According to Safian, the following ensued: 'Then I told him I was looking for some crazy guy to take care of this girl I know. He told me he was crazy and could use money to buy a motorcycle and I told him I would talk to him. He said, "How much?” ’. After a brief bargaining session, the parties agreed on a figure of $1,000. Safian, on a subsequent night, showed Miner her home and where she worked, and 'left it up to him’.

"After Safian heard about the killing, Miner met him at the bar and said that '[h]e didn’t mean to do it that way. I told him he was crazy, he was sick. I don’t know, maybe the way he did it’.

"Safian went on to explain: 'A couple of times he came into the Roosevelt Bar. When I realized how it was done I figured he did it, stabbed her. * * * He said to me to set up a meeting place to pay him. * * * I had money set aside at home, but not for him, just money saved. When I was talking to him you say these things. I never expected him to do it. Well, the reason it came into my mind to do it is that I felt that she was trying to put the children aside to better herself.’ ”

Miner’s lengthy and far more encompassing confession was described as follows (59 AD2d, at pp 22-23):

"Safian mentioned to Miner that he (Safian) 'needed a job done on a couple of people’ and that 'he needs two people knocked off, one of the persons he was thinking of doing himself and the other he said he couldn’t do himself as he needed a solid alibi which I found out later he needed the alibi as it was his wife.’

"The following week Safian again saw Miner and said he needed the job done. To this Miner replied: 'you get me a piece, talk the right figures and give me some information and I will do it.’ A week later Miner agreed to use a knife after being informed by Safian that he could not get a 'piece’. A couple of nights later Safian pointed out where the intended victim lived and also where she worked as a waitress on weekends (Cooky’s Steak Pub in Yonkers). He also informed Miner that she finished work between 11:30 p.m. and 3 a.m., pointed out her car and gave Miner a brief description of her general appearance. Safian also said that he would be at the Roosevelt Bar and Grill on weekend nights between 10 p.m. and 3 a.m. 'until it’s done’, so that he would have an alibi.

"On Friday, May 2, 1975, at about 11:30 p.m., Miner stopped his motorbike behind the victim’s car as she was getting out and asked her directions to Central Avenue. As she was writing out the directions, Miner took out his knife. When she saw the weapon, she started to run; however, Miner caught her and stabbed her about 19 or 25 times. The victim screamed several times and then went limp. When Miner, heard someone yelling, he ran to his bike and 'split’.

"Some days thereafter, Miner saw Safian at the bar, but pretended not to know him. Safian left and Miner followed five minutes later. Miner complained that 'you should have told me it was your wife’. Safian said he would be in touch and Miner suggested he get in touch through a friend. Although the two met a couple of times thereafter at the bar, Safian refused to give Miner any money because 'the cops were really coming down on him’.”

Juxtaposing both confessions, critical differences emerge.

Specifically, nowhere does Safian’s statement unambiguously indicate that Safian intended to have his wife murdered. In fact, as to the element of intent, though the indictment charged him with aiding and soliciting in the commission of murder (Penal Law, § 20.00), Safian’s confession is couched in vague phrases not necessarily more consistent with intent to murder than with intent to inflict nonfatal or perhaps nonphysical injury. The majority, concentrating on the many points on which both confessions dovetail, persistently ignores the crucial gap and bridges it by inferring the missing scienter element. Although a jury could have so interpreted portions of his confession, our only concern should be whether, absent Miner’s confession, Safian’s conviction for second degree murder was compelled beyond a reasonable doubt (People v Crimmins, 36 NY2d 230, 237). On that score, viewed objectively, while it does not present a pretty picture, it cannot be said that the evidence rules out the lesser charge of first degree manslaughter as a matter of law.

In contradistinction, Miner’s confession damns Safian. It details a plot inspired by Safian, though executed by Miner, to have Safian’s wife murdered. The references to be found in Miner’s statement alone, regarding having someone "knocked off” and an initial willingness on Safian’s part to procure a "piece”, completely rebut any inference that Safian could have reasonably intended Miner’s acts to result in other than death. Furthermore, a statement Miner made to a girl friend that he was to be paid for committing a homicide was also admitted. This, too, contributed to establishing Safian’s intent in the jury’s eyes.

The majority nevertheless struggles to fit this case within the confines of the exception to the Bruton rule that holds harmless the introduction of a codefendant’s confession when the other defendant himself has made an "almost identical” confession. (People v McNeil, 24 NY2d 550, 552). True, after making allowance for inevitable differences in such things as style and nuance, the test of harmlessness has been said to be whether there is substantial identity between the confessions on all elements of the crime (United States ex rel. Ortiz v Fritz, 476 F2d 37, 40). However, in Safian’s case, as we have seen, the gap between the potentials for conviction and acquittal, at least on the element of intent as a component of murder, was impermissibly narrowed by the additional data supplied in the Miner statement. Far from being inconsequential, the Miner confession was precisely the type of "powerfully incriminating extrajudicial statement” that Bruton was designed to guard against (see 391 US 123, 135-136). In short, this was not a case of "[c]ast our [Miner’s] confession and the result would need to be the same” (People v Fisher, 249 NY 419, 426).

Nor may the divergence between the two confessions be viewed as though it were purely a matter of semantics. Safian’s assertion that Miner either mistook or exceeded Safian’s plan is no more disingenuous than Henry II’s impassioned claim that his rhetorical plea to be rid of Becket was misconstrued by his knights as a command to murder. Similarly, the jury could have viewed Safian’s role, untainted by Miner’s confession, as "susceptible of involvement in a less nefarious plot” than that which the People choose to infer (59 AD2d 20, 32, supra, dissenting opn of Shapiro, J.).

Put another way, rather than two substantially identical confessions, Miner’s is the key with which Safian’s ambiguities are unlocked. At the very least, Miner’s version of the facts brings sharply into focus what Safian’s confession leaves unclear. Here there was no harmless variation in detail but a disparity on the fundamental mens rea issue, a disparity which Miner’s confession, though inadmissible hearsay as against Safian, could well have overcome to establish a crucial element of the State’s case on the second degree murder charge. To paraphrase Judge Cardozo, until Miner’s statement is considered, this was a case of which it could be said, "[o]nly half of the problem * * * has been solved * * * There remains the question of the nature of his offense”. (People v Galbo, 218 NY 283, 290.)

But no matter that the majority blinds itself to the Bruton violation here, it also ignores a related and important body of our own State’s decisional law that holds as error the denial of a severance in these circumstances. Like Bruton, the basis for this rule ultimately rests on the right of every defendant

to have the jury assess his guilt or innocence solely on the basis of the evidence constitutionally admissible against him. Thus, in People v Fisher (supra, p 427) we stated that the denial of a severance was an abuse of discretion whenever, "without the existence of a confession by one defendant, the evidence against another would be too weak to justify a conviction or even [render] a conviction * * * doubtful”. Ergo, when there exists a substantial risk that a codefendant’s confession provides the critical element in the prosecution’s case against the defendant, his right to a separate trial must be respected (People v Payne, 35 NY2d 22, 28; People v Feolo, 282 NY 276, 278-282).

In People v Payne (supra), we confronted circumstances not unlike those before us now. There, each of the three codefendants signed a statement admitting some degree of involvement and implicating the others in murder and attempted rape. The greatest disparity existed between the statements of Payne, whose confession incriminated everyne in the attempted rape, and those of his codefendant Streiff, who confessed only to helping abduct the woman and then leaving her alone with Payne. All three were tried jointly. Although each defendant took the stand, we found the denial of a severance as to Streiff reversible error, despite the availability of cross-examination, because Payne’s statement, clearly inadmissible against his fellow defendant, served as a "guide for resolving ambiguities in the People’s case against” Streiff. (People v Payne, supra, p 28.)

Under this exacting standard, a fortiori, in the present case, the denial of Safian’s motion for severance cannot be held harmless. Despite his obvious involvement in the death of his wife, without Miner’s account, Safian’s conviction for murder is rendered far less certain. And a court should not presume what a jury might or might not have concluded had Miner’s confession not been introduced (see People v Rossi, 270 App Div 624, 628-629). For, this is one of those "close cases in which the inculpatory remarks might have been the deciding factor in the juror’s minds even though the state had an otherwise strong case” (Note, 46 Temple LQ 111, 115; see People v McNeil, 24 NY2d 550, 556, supra, dissenting opn of Fuld, J.).

Additionally, the patently prejudicial impact of Miner’s confession was rendered all the more devastating by two other trial errors. Notwithstanding that the evidence properly admissible against Safian was sufficient to warrant submission of the charge on the lesser included offense of manslaughter in the first degree (see People v Henderson, 41 NY2d 233, 236), the requested charge was denied, leaving Safian with the all- or-nothing alternative of conviction on the murder charge alone. Also exacerbating the effect of Miner’s hearsay statements was the misstatement by the prosecutor, in his summation, that the defendants were "partners” and that "[statements made by or acts done by one partner are binding upon the other.” Such argument has been held to be prejudicial error that vitiates the instructions given by the trial court to the contrary (People v Adams, 21 NY2d 397, 401-402).

For all these reasons, we would reverse the order of the Appellate Division and grant a new trial as to Safian and affirm the order as to Miner.

Judges Jasen, Gabrielli and Jones concur with Chief Judge Breitel; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judges Wachtler and Cooke concur.

In People v Safian: Order affirmed.

Judges Jasen, Gabrielli and Jones concur with Chief Judge Breitel; Judge Fuchsberg concurs in a separate opinion in which Judges Wachtler and Cooke concur.

In People v Miner: Order affirmed. 
      
      . Miner’s confession was consistent with Safian’s in all significant respects. Miner elaborated on his original discussions with Safian about the killing, indicating that Safian had told him he wanted two people "knocked off”, and that he needed a solid alibi for one. Initially, Miner had insisted that Safian obtain a "piece” for him, but later settled on a knife. He was in touch with Safian at a bar several times after the killing, and he told Safian it would have been better if Safian had told him that the victim was his wife, so that he could have taken additional precautions, presumably to avoid detection.
     
      
      
        . Defendant Safian argues, and the dissent apparently agrees, surprisingly, that his confession differs from Miner’s in that he may have hired him at the bargained price of $1,000 to do some unspecified thing to his wife, less than killing, to teach her a lesson in the care of her children. However, logic and reality fail to connect the lesson with the husband or the children if whatever Miner was to do was not to be attributed to Safian. In fact, he, Safian, was anxious that the deed "to take care of” the victim occur at a time when he had an alibi to disassociate him entirely from the performance of the deed for which he had sought a "crazy guy” and agreed to pay a price of $1,000. Safian’s argument is as senseless as the crime itself.
     