People v. Agron

• Decision Date: 07 July 1961
• Citation: 176 N.E.2d 556,218 N.Y.S.2d 625,10 N.Y.2d 130
• Parties: , 176 N.E.2d 556 PEOPLE of the State of New York, Respondent, v. Salvatore AGRON and Louis Antonio Hernandez, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 625

218 N.Y.S.2d 625

10 N.Y.2d 130, 176 N.E.2d 556

PEOPLE of the State of New York, Respondent, v. Salvatore AGRON and Louis Antonio Hernandez, Appellants.

Court of Appeals of New York.

July 7, 1961.

Rudolph Stand, New York City, for Salvatore Agron, appellant.

James J. Hanrahan and Christy Lattarulo, New York City, for Louis Antonio Fernandez, appellant.

Frank S. Hogan, Dist. Atty., New York City (Richard G. Denzer and Robert Popper, New York City, of counsel), for respondent.

Sergio A. Pen a, Caguas, P. R., Felix Ochoteco, Jr., Benjamin Rodriquez, San Juan, P. R., and Jerome Count, New York City, for Puerto Rican Bar Association, amicus curiae.

FROESSEL, Judge.

Shortly after midnight on August 30, 1959, a small group of unarmed teenagers were brutally assaulted by a gang of approximately 15 young men as the former were sitting in a public playground near their homes. During the course of the wholly unprovoked assault, three boys were viciously stabbed by appellant Agron. Two of the victims, Young and Krzesinski, died as a result of the extremely deep stab wounds which Agron inflicted with his long, sharp knife or dagger. The third boy, Riemer, suffered a severe but not fatal wound of the stomach.

On September 21, 1959 the Grand Jury returned an indictment charging, in common-law form, appellants Agron and Hernandez, as well as five others, with two counts of murder in the first degree and one count of attempted murder. Following a lengthy trial, appellants were each convicted of two counts of murder in the first degree and sentenced to death. It is from these judgments of conviction that the present appeals have been taken. Appellants' convictions of attempted murder, as well as the convictions of their codefendants for lesser degrees of homicide, are not presently before us.

It is undisputed that appellant Agron did the actual stabbings which resulted in the death of the two boys, and the prosecution proved his personal premeditated intent to kill beyond any reasonable doubt by an abundance of evidence including admissions he made during the course of a 49-page statement which he voluntarily gave to the District Attorney, admitted in evidence without objection, and which he does not now challenge.

There was, however, no evidence that appellant Hernandez or any of the other defendants directly contributed to the deaths of Young and Krzesinski. Therefore, the prosecution, as to these defendants, proceeded upon the theory that they, together with Agron, had formed a conspiracy to kill, and thus all were equally responsible for the deaths which occurred as a direct result of and in furtherance of this alleged conspiracy to kill, even though they did not physically wield the knife.

Attempting to link Hernandez to Agron's acts upon the theory of conspiracy, the prosecution was required to prove a separate premeditated intent to kill on the part of Hernandez (People v. Weiss, 290 N.Y. 160, 48 N.E.2d 306; People v. Emieleta, 238 N.Y. 158, 144 N.E. 487; People v. May, 9 A.D.2d 508, 195 N.Y.S.2d 792). The present case is unlike the felony murder cases where mere intentional participation in the underlying felony renders all of the nonkiller participants equally guilty of first degree murder (People v. Wood, 8 N.Y.2d 48, 51, 201 N.Y.S.2d 328, 331; People v. Emieleta, supra, 238 N.Y. at page 163, 144 N.E. at page 489; People v. May, supra). Since the record is barren of any evidence indicating that Hernandez continued in the fight with an intent to kill after having knowledge of Agron's use of the knife to kill, his conviction must be sustained, if at all, on the theory that he was a member of a criminal conspiracy to kill (People v. Weiss, supra; People v. May, supra). This record, however, contains no such proof.

The relevant facts, which the jury was entitled to find, are briefly as follows: At approximately 8 or 9 o'clock on the evening of August 29, 1959, appellants, their codefendants and several other boys, including one Hector Bouillerce, were gathered in a small park at 72nd Street in New York City. In the presence of the appellants, one Nestor Hernandez (not the appellant), hereinafter called Nestor, allegedly told Jose Rivera (hereinafter called Pepe) the vice-president of a group to which appellants belonged that some Spanish boys, including one 'Frenchie' Cordero, had been beaten up that week by a group of Italian boys, and they (Nestor's gang) wanted to 'get even'. Nestor sought assistance from appellants and the others because they expected to encounter 'about four or five hundred Italian guys ganged up together' in the vicinity of 45th Street. Pepe said he would go to his 'Captain's' (Rojas') house and speak to him about it.

As the group parted, Pepe said he would get a knife and a belt which he kept at Rojas' home. At this remark, appellant Agron allegedly stated that he would carry the knife down to 45th Street and 'when he got down there, that he was going to stab anybody who gets in his way'. The prosecution's principal witness, Hector Bouillerce, testified that appellant Hernandez was present at the time Agron made this statement, but said nothing. Salado, another witness for the People who testified that he was present at the meeting, stated that Hernandez said, as a 'wisecrack', 'To Ninth Avenue to burn all them guineas'. It is not clear whether this remark came before or after Agron's statement.

Subsequently the group went uptown to 78th Street, Agron, Pepe and Colon looking for Rojas. Upon their return, Agron was carrying a paper bag containing a long knife, and Colon was wearing a garrison belt to which there had been affixed 84 brass stud projections. Hector stated that when Agron returned with the knife he 'started showing it around' to Hernandez and the other boys. Thereafter, Agron, in the presence of the others, rolled it up in a cape which Hernandez had given him.

In his testimony before the Grand Jury which the court refused to show to defense counsel because 'there is nothing in there contrary to what the witness has stated' Hector said, in response to specific questions, that when Agron returned with the knife he did not say anything or show it to anyone. This testimony is clearly at variance with his trial testimony; and thus the trial court committed error here as to Hernandez (People v. Walsh, 262 N.Y. 140, 186 N.E. 422; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448). In this connection, it was also error for the District Attorney to state in his summation that there were no inconsistencies between Hector's Grand Jury testimony and his trial testimony.

Around midnight the group split up and proceeded in several smaller contingents to 45th Street where they expected to meet the large band of hostile boys. Appellants, together with Hector, Soto and Colon, arrived at the 45th Street entrance to the playground before the others. At that point, Agron was armed with his long dagger, Colon wore the garrison belt, and Hernandez carried an ordinary umbrella.

The five boys entered the playground and saw two boys and a girl seated on one of the benches. Agron and Colon approached them, and then returned to their comrades stating that 'they could be the ones but they didn't know'. Thereupon Soto, Colon, Hector and Hernandez left the playground and proceeded to the corner to await the arrival of their companions. Agron remained behind fearing that he might 'get picked up' with the knife, which he had concealed in his undershirt.

Their friends arrived shortly thereafter, and the entire group of about 15 boys returned to the park. At this time, they found six or seven boys and two girls seated on benches in the playground. The latter turned out to be the two 16-year-old boys fatally stabbed and several of their friends. Agron asked these neighborhood teenagers if they had seen Frenchie, and was told by one of them that he was around the corner. Pepe and Nestor approached them, but told their companions that it was too dark to identify the boys and girls.

Krzesinski, Young, Riemer and some of the others then decided to leave. As they were leaving, someone called out, 'No Gringoes leave the park'. Two of the boys turned back at this command and walked over to where Hector was standing with Pepe, Nestor and Colon. Pepe then asked Nestor whether these were the boys who had beaten up his friends earlier that week, and as he said this he lit a cigarette lighter in front of their faces. Nestor said he did not know. The boys denied any knowledge of the episode referred to. At that point Soto approached and asked, 'What is the matter? Are you lying?', and hit one of the boys in the mouth with his fist, knocking him down. Thereafter, fighting broke out throughout the playground. Hernandez was seen standing on a side bench swinging his umbrella at a group clustered about him.

Riemer testified that as he was about to leave he was hit on the side of the head with a square object and fell against the sliding pond. Four or five members of appellants' group then advanced upon him, and commenced to beat him with their fists. As this was going on, Riemer saw Agron step in and stab him just above the navel. Hernandez took no part in the assault upon Riemer.

There was no other witness to the stabbings, and the only other record of what actually occurred in that respect comes from Agron's statement to the District Attorney. Agron told how one of his friends picked up a boy from the ground, knocked him out, picked him up again, and then Agron stabbed him in the back. His next victim was running (apparently to escape) when Agron struck him in the back. He then stabbed another boy in the front, inserting the knife all the way. There is no evidence that Hernandez saw these acts; the playground was dark.

As the boys were leaving after the stabbings had occurred Hernandez and one or two of the others paused momentarily to assault Orphanos and his girl friend who were...