52 N.Y.2d 350, People v. Ventimiglia

Citation:52 N.Y.2d 350, 438 N.Y.S.2d 261
Party Name:People v. Ventimiglia
Case Date:March 31, 1981
Court:New York Court of Appeals

Page 350

52 N.Y.2d 350

438 N.Y.S.2d 261

The PEOPLE of the State of New York, Respondent,


Sebastian VENTIMIGLIA, Also Known as Benjamin Ventimiglia, Appellant. The PEOPLE of the State of New York, Respondent,


Mario RUSSO, Appellant.

New York Court of Appeals

March 31, 1981.

[438 N.Y.S.2d 262] Irving Anolik, New York City, for Sebastian Ventimiglia, appellant.

Patrick Henry, Dist. Atty. (Vincent A. Malito, Asst. Dist. Atty., of counsel), for respondent.

Richard J. Oddo, Ozone Park, Mario Melerba and Nicholas R. Canizio, Queens, for Mario Russo, appellant.


MEYER, Judge.

Where defendants charged with murder, kidnapping and conspiracy have stated as part of their planning that they have a place for disposing of the body "where we put people * * * and they haven't found them for weeks and months", the statement is admissible because its probative value as to premeditation of the murder and as to the plan of the conspiracy outweighs the prejudice resulting from the admission implicit in the statement that defendants have committed prior murders. In view of the potential for prejudice in such testimony, however, a prosecutor who intends to adduce it before the jury should first obtain a ruling from the Trial Judge by offering the testimony out of the presence of the jury, and the Trial Judge should exclude any part of it that is not directly probative of the crimes charged. While that was not done in the instant case the portion of the statement that may have been excluded had it been done is essentially cumulative of the part which was admissible. That being so, and the other contentions urged by defendants not constituting grounds for reversal, either because not preserved, not error or not an abuse of discretion, 1 the order of the Appellate Division, 423 N.Y.S.2d 975, affirming their convictions should be affirmed.

Defendants were indicted together with Victoria Ardito and charged with the murder of her lover, Benjamin Mattana. The theory of the prosecution was that Ardito had hired defendants to kill Mattana because he was about to leave her for another woman. During trial Ardito became incompetent to stand trial, and the case against her was severed.

The prime witness for the prosecution was John Dellacona, who claimed that he had been impressed into service by defendants who made him their driver. He gave a complete account of the events leading up to the murder of Benjamin Mattana, which took place in the early morning hours of April 28, 1976. According to Dellacona, Ardito had agreed to lend him money and had instructed him to meet her at 7:30 P.M. on April 27, 1976 at Exit 19 of the Southern [438 N.Y.S.2d 263] State Parkway. At the meeting place Dellacona found not only Ardito but also defendants Ventimiglia and Russo. Together they drove to the parking lot of a nearby bowling alley, where defendants made clear to Dellacona that he was to participate in a murder and that his participation was not a voluntary matter.

Benjamin Mattana operated a motorcycle shop in Lynbrook. Dellacona testified that Ventimiglia first made a short trip from the bowling alley to the motorcycle shop in order to decide whether the murder could be accomplished there. Concluding that the shop was too busy, Ventimiglia returned to the bowling alley parking lot and together Dellacona, Ventimiglia, Russo and Ardito departed for Mattana's residence in Lloyd Harbor.

At trial Dellacona gave detailed testimony about discussion between the defendants as to who was to kill Mattana and where and how it was to be done. Because Ardito did not want Mattana killed in the house, they devised a plan whereby Mattana would be taken to a desolate area where the murder would go unnoticed. The plan was for defendants to hide in Mattana's house until he came home and retired for the evening with Ardito, then burst into the bedroom and, pretending that their only purpose was to rob the safe in Mattana's...

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