People v. Ventimiglia

Decision Date31 March 1981
Citation438 N.Y.S.2d 261,52 N.Y.2d 350,420 N.E.2d 59
Parties, 420 N.E.2d 59 The PEOPLE of the State of New York, Respondent, v. Sebastian VENTIMIGLIA, Also Known as Benjamin Ventimiglia, Appellant. The PEOPLE of the State of New York, Respondent, v. Mario RUSSO, Appellant.
CourtNew York Court of Appeals Court of Appeals
Irving Anolik, New York City, for Sebastian Ventimiglia, appellant
OPINION OF THE COURT

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 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 motorcycle shop, to demand the keys to the shop and the combination of the safe. Russo was then to "force" Ardito to accompany him to the shop, while Ventimiglia remained at the house with Mattana. After opening the safe and removing its contents, Russo was to call Ventimiglia at Mattana's house and inform him that the safe would not open, after which Ventimiglia would instruct them to return to the house so that Ventimiglia and Russo could take Mattana back to the motorcycle shop and force him to open the safe. The latter statement would, of course, be mere pretext; Mattana was to be taken from his house to be murdered.

Dellacona's recitation of the discussion between and with defendants concerning where the murder was to take place is the subject of this appeal. As ultimately detailed before the jury it was as follows: "Benny said that they would take him to 'their spot'. Mario said, 'Yeah, it's a good idea, we'll take him over there.' I had said, 'You mean you done it before?' and Benny said, 'Yeah, we did it before.' Mario said, 'Yeah, just a couple of times' and like snickered. Ben then said to me, 'Junior, we have a spot over by--you know where the Belt Parkway is?' I said, 'Yeah'. He said, 'Right over there by the dumps, we have a spot where we put people there and they haven't found them for weeks and months.' " 2

Defendants objected that "testimony of another alleged murder committed by Mr. Russo and Mr. Ventimiglia" was inadmissible and moved for a mistrial. Conceding that the statements were declarations by defendants implying a prior crime, the District Attorney argued that they were nevertheless admissible because they showed that the reason the defendants had chosen to commit the murder in the particular spot they did, some 30 miles from Mattana's home, was the possibility that his body would decompose before it could be discovered, that the statements related to the "where, why and how the murder was committed in the very remote section * * * where * * * it was carried out." The Trial Judge overruled the objection not only when first made, but also when repeated as part of a motion for a mistrial at the end of the People's case and when at the jury's request the testimony was reread to them during deliberation.

The remainder of the testimony need not be detailed, except to note that Dellacona's account of what actually happened thereafter showed that while the events did not occur exactly as planned, the essentials of the plan were carried out. Dellacona drove the group to Howard Beach, where Mattana was ordered out of the car and led into the tall weeds of the marches bordering Jamaica Bay. Dellacona heard several "pops" coming from the direction of the weeds, and when Ventimiglia returned he related that Mattana had tried to escape and it had taken several bullets to kill him. Evidence from other witnesses corroborative of Dellacona's testimony was also presented. The jury found defendants guilty of second degree murder, first degree kidnapping and first degree conspiracy and the Appellate Division affirmed.

The rule excluding evidence of uncharged crimes is based upon the human tendency more readily "to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime" (People v. Molineux, 168 N.Y. 264, 313, 61 N.E. 286; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735; see People v. Zackowitz, 254 N.Y. 192, 198, 172 N.E. 466) and is intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged.

The rule is not an absolute, however. Its policy of protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged (People v. Allweiss, supra; People v. Vails, 43 N.Y.2d 364, 401 N.Y.S.2d 479, 372 N.E.2d 320; People v. Jackson, 39 N.Y.2d 64, 382 N.Y.S.2d 736, 346 N.E.2d 537). There is no litmus paper test for determining when the probative value of the evidence outweighs its potential for prejudice. Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux; well-known listing (168 N.Y., at p. 293, 61 N.E. 286) of "(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the...

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