People v. De Tore

• Citation: 34 N.Y.2d 199,313 N.E.2d 61,356 N.Y.S.2d 598
• Parties: , 313 N.E.2d 61 The PEOPLE of the State of New York, Respondents, v. John DE TORE and Kenneth Wedra, Appellants.
• Decision Date: 08 May 1974
• Court: New York Court of Appeals

Page 598

356 N.Y.S.2d 598

34 N.Y.2d 199, 313 N.E.2d 61

The PEOPLE of the State of New York, Respondents, v. John DE TORE and Kenneth Wedra, Appellants.

Court of Appeals of New York.

May 8, 1974.

Herald Price Fahringer and Lawrence A. Schulz, Buffalo, for Kenneth Wedra, appellant.

Arthur F. Gaynor, White Plains, for John De Tore, appellant.

Carl A. Vergari, Dist. Atty. (B. Anthony Morosco, Janet Cunard, James M. Rose, Tony Berk, White Plains, Robert James Diggs, Law Student, of counsel), for respondent.

BREITEL, Chief Judge.

Defendants De Tore and Wedra were convicted, after a jury trial, for the murder of De Tore's wife. Each received a sentence from 25 years to life imprisonment. They appeal. De Tore, involved with another woman, allegedly arranged through an intermediary to pay $9,000 for the killing. Wedra, unknown to De Tore, allegedly was the hired killer.

The principal issue is the sufficiency of the evidence against the killer Wedra. Also urged as error was the failure of the prosecutor to produce the intermediary, one Gasperino, after describing in his opening statement how Gasperino would implicate Wedra. De Tore had previously confessed but on the trial disclaimed his confession. He explained that he had never intended to and did not confess to the planned killing of his wife. He also argued that his statement was obtained after a long and improper delay between his first being questioned by the police and his arrest. In addition, he seeks a reversal because of the failure to prove the killing by Wedra.

There should be an affirmance. A fellow inmate in Wedra's cellblock testified, albeit only after denial and recantation, that Wedra had admitted the killing. It was a fair jury issue to assess the inmate's credibility. Moreover, there were several inconclusive circumstances tending to implicate Wedra. Hence, there was sufficient evidence to sustain Wedra's conviction. The case against De Tore, on any view of the evidence, is invulnerable on appeal.

Whether the failure to produce as a witness the intermediary Gasperino, although his testimony was foretold in the prosecutor's opening, would have required a mistrial if either defendant had moved for one, lay within the trial court's discretion. In any event, the failure of either defendant to move for a mistrial puts the question beyond review. Of the other asserted errors, few merit extended discussion.

De Tore's wife of 29 years was found dead in the couple's Westchester County home in November, 1968. She had been shot twice, in the head and chest, and strangled. The body was found on her bed, naked from the waist down, with legs apart, suggesting a sexual assault, and the bedroom had been ransacked, suggesting a larceny.

Four days after the killing De Tore admitted to the police his involvement with another woman, whom he had promised to marry. Two days later, when confronted with large withdrawals from several bank accounts, he attempted suicide. Finally, less than two weeks after the killing, in writing and orally, De Tore admitted an arrangement on payment of $9,000 for Gasperino to 'solve all (his) problems.' He was still not arrested for another two days during which he led the police to others implicated in the plot.

De Tore, by his confessions, stated that he had been under increasing pressure from his mistress to divorce his wife. De Tore met one Nicholas Gasperino who said he could 'solve all (his) problems' for $9,000. Gasperino was to hire experienced men for the task. De Tore met Gasperino at a diner in Yonkers, paid him $5,000 in cash and gave him a key to the back door of the De Tore home. This was six days before the killing.

The People's case against Wedra, allegedly hired by Gasperino to do the killing, hinges upon the testimony of Bruno La Spina. La Spina and Wedra, friends for 20 years, had been in the same cellblock in Westchester County Jail for a week. La Spina, an admitted drug addict, was being held on a burglary charge. He testified that Wedra admitted to him in jail that he committed the killing by arrangement with Gasperino.

Defendants attack La Spina's testimony because on the witness stand he had first denied, on direct examination, that Wedra had made any admission to him. Instead, he said that Wedra had told him only that he had not committed the homicide and was being framed. He further said that he had been previously coached by the police to inculpate Wedra.

While La Spina was still undergoing redirect examination, and after the luncheon recess was taken, the Trial Judge, out of the presence of the jury, ordered all spectators searched. La Spina then resumed the witness stand and recanted his earlier testimony. He now testified that Wedra had admitted the killing. La Spina said that he and his family had been threatened and for that reason he had lied on direct examination.

Before the trial had begun the People had not known of La Spina as a witness. He had only come forward with his testimony during the trial. The intended key witness was the intermediary, Gasperino, who had allegedly received money from De Tore and hired Wedra to do the killing. (It was apparently Gasperino's testimony before the Grand Jury that had implicated Wedra.) The prosecutor, in his opening, said that Gasperino would testify and that the prosecutor would trace the house key and the money to Wedra. When called as a witness, however, Gasperino, out of the presence of the jury, invoked his privilege against self incrimination. No motion was ever made for a mistrial on the ground that Gasperino had never testified on the trial. The jury was instructed to draw no inference, favorable or unfavorable to defendants, from Gasperino's failure to testify.

La Spina's testimony inculpating Wedra, though crucial, did not stand alone. There was testimony by three high school girls that they saw two men enter the victim's house at about the time of the killing. Although she could not pick Wedra out of a lineup, one of the girls testified that Wedra looked 'similar' to one of the men. Most harmful to Wedra's case was the presence of his automobile across the street from the victim's home, its motor running, only five days before the killing. One prosecution witness, who had been visiting a neighbor of the victim that day, had actually recorded the license plate number of the Wedra car, registered in his sister's name but owned by Wedra.

Wedra did not take the stand. He sought to establish, as an alibi defense, that he had been at home in The Bronx attending a birthday party for his three-year-old daughter. De Tore, on the other hand, did testify. He admitted he had agreed to pay Gasperino $9,000, but denied that the purpose was to kill his wife. Instead, according to De Tore, $5,000 was to be used to accomplish the silencing of his importunate mistress, either by buying her off or intimidating her, and the remainder was to compensate Gasperino for his trouble. On cross-examination, De Tore admitted he had been unfaithful to his wife during the last 23 of the couple's 29 years of marriage.

Unless the evidence against Wedra is insufficient as a matter of law, there must be an affirmance. Questions of fact--the credibility of La Spina, the weight of the evidence--are all beyond review in this court. Such questions are properly left to the triers of fact, who are able and entitled to assess, at first hand, the credibility and reliability of the witnesses (see, e.g., People v. Cerullo, 18 N.Y.2d 839, 841, 275 N.Y.S.2d 845, 847, 222 N.E.2d 605, 607; People v. Lobel, 298 N.Y. 243, 251, 82 N.E.2d 145, 148; see, generally, Cohen & Karger, Powers of the New York Court of Appeals, p. 742).

Moreover, solely because La Spina changed his testimony on the trial, his ultimate testimony is not incredible as a matter of law. La Spina explained that he had been threatened. It was for the triers of fact to assess all relevant circumstances and decide whether or not to credit that explanation or any of the versions in La Spina's testimony.

Defendants rely on People v. Ledwon, 153 N.Y. 10, 20--22, 46 N.E. 1046, 1049--1050, for the contention that shifting testimony by the same witness, alternating between inculpation and exculpation, is insufficient as a matter of law to establish guilt beyond a reasonable doubt. The rule of the Ledwon case is sound, but is not applicable. In the Ledwon case, there was no reliable basis offered to the jury to explain the shifting testimony; there was only the testimony of a 12-year-old boy who four times contradicted his own eyewitness versions about his father's death. In this case, on the contrary, there was the one substantial recantation with the witness explaining his reasons for the change, reasons that the jury was entitled to accept or reject. ^*

Of the failure to produce Gasperino, it happens not infrequently that a prosecutor is unable to prove every statement made in his opening especially when he must rely on criminal characters. But the general rule is that, absent bad faith or undue prejudice, a trial will not be undone (see, e.g., Frazier v. Cupp, 394 U.S. 731, 735--736, 89 S.Ct. 1420, 22 L.Ed.2d 684, affg. 9 Cir., 388 F.2d 777, 779; United States v. Woodring, 10 Cir.,446 F.2d 733, 736--737; United States v Mason, 10 Cir., 440 F.2d 1293, 1299, cert. den. 404 U.S. 883, 92 S.Ct. 219, 30 L.Ed.2d 165, see, also, ...