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Respondent-appellant, Superintendent of the Shawangunk Correctional Facility, appeals on behalf of the State of New York from a judgment entered in the United States District Court for the Eastern District of New York (Korman, J.) granting petitioner-appellee Robert Samuels' petition for a writ of habeas corpus. In that petition, Samuels challenged a November 15, 1982 judgment of the New York Supreme Court, Kings County, convicting him after a jury trial of fourteen counts of Robbery in the First Degree, in violation of New York Penal Law § 160.15 (McKinney 1988) and one count of Assault in the Second Degree, in violation of New York Penal Law § 120.05(2) (McKinney 1987) and sentencing him to concurrent prison terms of twelve to twenty-five years for seven of the robbery counts, eight and one-third to twenty-five years for the remaining seven robbery counts and three to seven years for the assault count.

The district court found that the admission at Samuels' trial of oral, written and videotaped confessions made by nontestifying co-defendants, which were substantially similar to his own confession to the police, violated the Confrontation Clause under the Supreme Court's decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), and was not harmless error. Recently, in Brecht v. Abrahamson, ___ U.S. ___, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), the Supreme Court announced that the proper standard for determining whether habeas relief must be granted based upon a constitutional error at trial is not whether the error was harmless beyond a reasonable doubt, but whether it "`had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at ___, 113 S.Ct. at 1714 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We find that the district court erroneously applied this standard and accordingly reverse.


13 F.3d 522 (1993)

Robert SAMUELS, Petitioner-Appellee,


Louis F. MANN, Superintendent, Shawangunk Correctional Facility, Respondent-Appellant.

No. 407, Docket 93-2351.

United States Court of Appeals, Second Circuit.

Argued October 4, 1993.

Decided December 30, 1993.

New York Law School location: File # 1768, Box #131