People v. Geoghegan

Citation416 N.Y.S.2d 802,68 A.D.2d 279
PartiesThe PEOPLE of the State of New York, Respondent, v. Henry GEOGHEGAN, Defendant-Appellant.
Decision Date24 May 1979
CourtNew York Supreme Court — Appellate Division

Zoltan Hankovszky, New York City, for defendant-appellant.

Amyjane Rettew, New York City, of counsel (Donna Krone, New York City, with her on the brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

Before MURPHY, P. J., and KUPFERMAN, SULLIVAN and MARKEWICH, JJ.

MURPHY, Presiding Judge:

Defendant Henry Geoghegan was indicted for allegedly murdering and robbing Jan DeVroom in his apartment on November 13, 1975. Although the prosecution presented its case through sixteen different witnesses, the facts essential to this appeal came through five primary witnesses, viz: Thomas Gilligan, Detective John Toone, Detective Carl Sgrizzi, Robert Kremer Hoke, and Police Officer James McCabe.

Thomas Gilligan, a purported accomplice of the defendant, cooperated with the police in the investigation and prosecution of this case. After testifying at this trial, he was later permitted to plead guilty to attempted robbery in the second degree for which he was sentenced to an indeterminate three year term of imprisonment. Gilligan's testimony as to the events surrounding DeVroom's murder will be summarized in narrative form.

DeVroom was a wealthy homosexual who, at various times, had been a friend and lover of Gilligan, Hoke and one Steven Sherman. Prior to the subject occurrence, Gilligan, Hoke and Sherman had become acquainted with the defendant and one Chris Denim. In October of 1975, Gilligan, Hoke, Sherman, the defendant, the defendant's brother (James) and possibly Denim were present at the same party. They had a general discussion about making easy money, by such means as robbing DeVroom.

On November 13, 1975, at about 3:30 p. m., the defendant, Denim, Sherman and Gilligan met and decided that they were going to steal money from DeVroom by falsely telling him that they needed cash to bail Sherman from jail. If that ploy failed, the four individuals agreed that they would then rob DeVroom. During this discussion, Denim and Sherman were playing with knives. One knife was similar to a stilletto; the other was wider with a wooden handle and brass decorations.

The four individuals arrived at DeVroom's building later that afternoon. Denim and the defendant immediately went up to his apartment; Sherman and Gilligan waited downstairs in the vestibule. After several minutes, Sherman and Gilligan proceeded to the apartment and discovered that the decedent had been stabbed to death. Defendant was standing over the body with the wooden-handled knife. Defendant threatened to kill Gilligan, as he had killed the decedent, unless Gilligan opened a file cabinet containing valuables. Gilligan opened the file cabinet and, shortly thereafter, he fled from the building.

Gilligan walked about fifteen blocks to the apartment of defendant's girlfriend. By that time, the other three individuals had already arrived by cab. Gilligan noticed some personal items of the decedent in the apartment. Later that evening, Sherman, Denim and Gilligan went to the apartment of defendant's brother. Hoke, whose apartment was on a lower floor in the building, entered James Geoghegan's apartment for a short period to install a plant light. Thereafter, Sherman, Denim, Gilligan, the defendant and his brother James went to Dave Stewart's apartment. Two female prostitutes were also present in Stewart's apartment. At that time, defendant and Denim sold decedent's watch to Stewart. Gilligan was eventually arrested on December 3, 1975. In addition to giving the foregoing testimony, Gilligan identified a knife that he had purchased a few days before trial. He stated that this knife was similar to the one used by the defendant in the murder. Over objection, the trial Court received the knife into evidence.

Sherman and the defendant were arrested by Detectives Toone and Sgrizzi in the early morning hours of December 4, 1975. Sherman jumped bail during this trial. When he was finally apprehended, Sherman refused to testify for the prosecution. The trial Court permitted Detectives Toone and Sgrizzi to testify to the extrajudicial statements made in the station house by Sherman after his capture. Sherman gave the Detectives the same basic account of the occurrence as Gilligan gave at trial. The Detectives' testimony at trial was, with one exception, in redacted form. Any references to the defendant were deleted and the word "another" was substituted therefor. The exception, alluded to above, occurred during the testimony of Detective Toone. The latter testified, without objection from defense counsel, that:

"Yes, he (Sherman) said that he realized that he had seen Thomas Gilligan and he had seen the Defendant and he said that he realized that we had it and was going to give up the whole thing . . ." (emphasis supplied)

Parenthetically, it should be noted Sherman was convicted on April 1, 1977 of murder in the second degree and robbery in the first degree. His judgment of conviction has been affirmed (--- A.D.2d ---; decided simultaneously herewith).

Hoke's testimony is relevant in two areas. He confirmed Gilligan's testimony that in October of 1975 there was a general discussion, in which defendant participated, to rob DeVroom. He also testified that, after the murder, Gilligan, Denim and defendant were quieter than normal when he met them in the apartment of James Geoghegan.

Police Officer McCabe stated that he was unable to locate Stewart, Denim and two prostitutes who had jumped bail during trial. The defendant presented no witnesses on his behalf.

During the course of his summation, the prosecutor stated, again, without objection from defense counsel, that:

"You've heard the evidence in the case and there were other witnesses that would have been called, we would like to have called, and you know we made every effort to reach out for them. We told you the efforts we made for David Stewart, Barbara Stewart, for this prostitute Amber Pierce (phonetic) also known as Star. You know the type of people they are. You know the people that the police were looking for. The police were looking for the witnesses and through no fault of our own they are not here to be placed on the stand. You have to consider whose friends they are."

The court then charged the jury. To the extent here relevant, it should be emphasized that the trial court did not give limiting instructions with regard to the redacted testimony nor did defense counsel except to the court's omission in this area.

Upon appeal, six basic issues are presented.

The first question is whether the court properly permitted the two detectives to testify about Sherman's statements to them in the station house after his arrest. We all agree that the trial court should not have permitted this testimony of the detectives to be used against the defendant. Sherman's statements were properly characterized as declarations against penal interest for they qualified as such under the four-fold test enunciated in People v. Settles, 46 N.Y.2d 154, 167, 412 N.Y.S.2d 874, 881, 385 N.E.2d 612, 619. First of all, Sherman was unavailable because he refused to testify at defendant's trial. Secondly, he realized that the statements were against his penal interest when made. Thirdly, the declarant demonstrated a firsthand knowledge of the facts surrounding DeVroom's murder. Lastly, Gilligan's testimony constituted independent evidence confirming the reliability and trustworthiness of the declarations.

The more narrow question thus presented is whether Sherman's declarations against penal interest are admissible against the defendant. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court held that it was error to receive, at a joint trial, a confession made by one defendant implicating his co-defendant where the confessing defendant did not testify. The highest court found that the admission of the confession would deprive the co-defendant of his right to confrontation under the Sixth Amendment. The Court further found that, despite appropriate limiting instructions, there was a substantial risk that the jury would consider the implicating reference in determining the co-defendant's guilt. (Richardson on Evidence (10th ed.), § 233, p. 207; Fisch on New York Evidence (2nd ed.), § 872, p. 512). Consequently, when two or more defendants are tried jointly, a confession given by one defendant which inculpates a co-defendant, may not be received in evidence unless all parts of the extrajudicial statements implicating that co-defendant can be effectively deleted. Where effective redaction is not possible, separate trials must be ordered (People v. Jackson, 22 N.Y.2d 446, 450, 293 N.Y.S.2d 265, 267, 239 N.E.2d 869, 870).

In view of the fact defendant was tried alone, there was no valid reason for accepting Sherman's declaration into evidence. Those declarations could not be used against Sherman for he was not a party to this criminal proceeding. The declarations could not be used against the defendant because he did not have an opportunity to cross-examine Sherman, as was mandated in Bruton. In any event, even if Sherman had been jointly tried with the defendant, reversal would now be ordered as a matter of discretion in the interest of justice (CPL § 470.15 subd. 6(a)). As was mentioned above, Detective Toone had testified that Sherman referred to the defendant in his station house confession. This allusion to the defendant in Toone's testimony directly implicated the defendant in the murder and made the other attempts at redaction ineffective. The jury could logically surmise the word "another" referred to the defendant. Likewise, prejudicial error was committed by the trial Court in failing to give proper limiting instructions to the jury with reference to the redacted testimony of the...

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