The defendant, who is charged with Endangering the Welfare of a Child (Penal Law (PL) § 260.10[1]) and Reckless Endangerment in the Second Degree (PL § 120.20), seeks (i) suppression of any statements allegedly made by the defendant or, in the alternative, a Huntley hearing ^[FN1] , (ii) severance of this case (Docket No. 2015KN035514) from the case against Cannigia Guerra (Docket No. 2015KN035515) and (iii) a reservation of right to file further motions pursuant to CPL § 255.20(3). The People oppose the motion arguing, inter alia, that the defendant's motion for severance is premature and should be decided by the court only following [*2]a determination of the admissibility of any such statements pursuant to a Huntley hearing.

The critical issue before the court is whether the Confrontation Clause ^[FN2] requires at this stage of the proceeding — i.e., prior to the determination of the admissibility of a non-testifying co-defendant's oral and written statements that facially incriminate the defendant where the defendant has made an oral and written admission that are substantially similar to the co-defendant's admissions and which address the major elements of the charged offense (re: "interlocking confessions") - severance of the defendant and the co-defendant's trials. The court concludes that it does not. For the reasons set forth below, the court orders a Huntley hearing and reserves decision as to whether severance is appropriate pending the result of such Huntley hearing.

On June 2, 2015, the defendant was arraigned on the pending charges. At that time, the People served and filed certain notices, including CPL § 710.30(1)(a) notice of the defendant and the co-defendant's Cannigia Guerra's alleged oral and written statements to Detective Joseph Wonsor. The CPL § 710.30(1)(a) notice indicates that the oral statements of the defendant and the co-defendant occurred at 45 Nevins Avenue and the written statements occurred at the precinct. The handwritten statement of the defendant is signed by the defendant and Detective Wonsor and the handwritten statement of the co-defendant is signed by the co-defendant and Detective Wonsor. Attached to each handwritten statement is a piece of paper titled "Miranda Warnings" which is also signed by the defendant and co-defendant respectively. At the defendant's arraignment, the People stated in open court on the record that they were "ready for trial" because the accusatory instrument was a first party complaint which contained non-hearsay factual allegations that made out a prima facie case of the pending charges. The court deemed the accusatory instrument an information and adjourned the matter to All Purpose Part 2 (AP2) until June 5, 2015 for Discovery by Stipulation (DBS).

On June 5, 2015, the court indicated that the People in fact still needed a supporting deposition and adjourned the matter until July 29, 2015 for a supporting deposition to corroborate certain factual allegations necessary to make out the pending charges. Off-Calendar on June 9, 2015, the People served on the defendant and filed with the court a statement of readiness (the June 9th SOR) and a superseding information.

On July 29, 2015, the People again indicated that they were ready for trial based on the June 9th SOR and the matter was further adjourned until October 13, 2015 for DBS.

On October 13, 2015, the defendant served and filed the instant motion. Co-defendant Guerra has not filed a motion to sever the two cases. The court indicated that the People could [*3]file any opposition papers by November 9, 2015 and further adjourned the case until January 7, 2015 for the court's decision on the defendant's motion.

The case in front of the court involves both an oral and written statement of each of the defendant and the co-defendant — four statements in total. Inasmuch as the People have served CPL § 710.30(1)(a) notice indicating their intention to introduce these four statements into evidence, a Huntley hearing is ordered to ensure that defendant's constitutional rights have not been violated. Should the People fail to meet their burden with respect to any of the statements, then that statement will be suppressed.

The case in front of the court involves the potential introduction into evidence by the People of a non-testifying co-defendant's oral and written statements that incriminate the defendant where the defendant has also made incriminating oral and written admissions that are substantially similar to the co-defendant's admissions and address the major elements of the charged offense.

The Sixth Amendment of the United States Constitution guarantees a defendant the right to confront and cross-examine "witnesses against him". US Const., 6th Amend. A witness is considered a "witness against him" for the purposes of the Confrontation Clause if his testimony is part of the evidence that the jury may consider in assessing the defendant's guilt. See Cruz v New York, 107 S. Ct. 1714 (1987). However, because of the substantial risk in the jury using the non-testifying co-defendant's statement to assess the defendant's guilt, the Confrontation Clause bars the admission into evidence of a non-testifying co-defendant's statement which facially incriminates the defendant even where the defendant's own admission is admissible against him and that no jury limiting instruction (i.e., the jury may not consider the statement of the co-defendant when determining whether the People have proved beyond a reasonable doubt the elements of the offense charged as to the defendant) is sufficient to cure this violation of the defendant's rights. See People v Russo, 81 AD3d 666, 667 (2d Dept 2011); Bruton v United States, 391 US 123 (1968); See Cruz v New York, 107 S. Ct. 1714 (1987). Therefore, if either or both of the co-defendant's statements are admissible and unless the People withdraw CPL § 710.30(1)(a) notice as to any admissible statement and decide to proceed without introducing such admissible statement into evidence for substantive purposes (i.e., and not solely reserving the right to use such statement for the purposes of attacking the credibility of the co-defendant if [*4]such co-defendant should testify ^[FN3] ), redact to omit any reference as to the other defendant in any such otherwise admissible statement ^[FN4] , or there are separate juries as to the defendant and the co-defendant, severance would appear to be appropriate.

However, the court has not yet determined whether the People can meet their burden as to the admissibility of any of the alleged confessions or whether they will in fact be suppressed. This determination will be made pursuant to the Huntley hearing ordered above. Therefore, the court reserves decision as to whether severance is appropriate or necessary in this case pending the results of the Huntley hearing so ordered by this court.

Finally, the branch of the defendant's motion seeking the right to make further motions is granted to the extent provided for by CPL § 255.20.