People v. Allini

• Decision Date: 23 January 1978
• Parties: The PEOPLE, etc., Respondent-Appellant, v. Ralph ALLINI and Ralph Urritia, Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 520

401 N.Y.S.2d 520

60 A.D.2d 886

The PEOPLE, etc., Respondent-Appellant, v. Ralph ALLINI and Ralph Urritia, Appellants-Respondents.

Supreme Court, Appellate Division, Second Department.

Jan. 23, 1978.

Leonard Fusfield, Brooklyn, for appellant-respondent Allini.

David Blackstone, New York City, for appellant-respondent Urritia.

Eugene Gold, Dist. Atty., Brooklyn (Michael J. Halberstam, Brooklyn, of counsel), for respondent-appellant.

Before MOLLEN, P. J., and TITONE, RABIN and MARGETT, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendants Ralph Allini and Ralph Urritia from two judgments of the Supreme Court, Kings County (one as to each of them), both rendered July 22, 1976, convicting them of reckless endangerment in the first degree and possession of weapons, etc., as a misdemeanor, upon a jury verdict, and imposing sentence.

The People appeal from so much of an order of the same court, dated June 14, 1976, as set aside jury verdicts of guilty as against both defendants of attempted murder (three counts) and assault in the first degree (three counts).

Judgments reversed and order reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, and new trial ordered as to the entire indictment.

As a result of the wounding of three named persons on the evening of June 27, 1973 during a large-scale confrontation between two ethnic groups, Ralph Allini and Ralph Urritia were charged in an eight-count indictment (filed on October 26, 1973) with the following crimes:

(1) attempted murder of Jose Colon, with a loaded rifle;

(2) assault in the first degree of Jose Colon, with a loaded rifle;

(3) attempted murder of Reginald Owen, with a loaded rifle;

(4) assault in the first degree of Reginald Owen, with a loaded rifle;

(5) attempted murder of Carlos Medina, with a loaded rifle;

(6) assault in the first degree of Carlos Medina, with a loaded rifle;

(7) reckless endangerment in the first degree, with a loaded rifle; and

(8) possession of weapons and dangerous instruments and appliances (a rifle) as a misdemeanor.

The counts of attempted murder were predicated upon a theory of a specific intent to murder, rather than upon a theory of recklessness. The first degree assault charges were likewise predicated upon a specific intent theory rather than a theory of recklessness. ^*

Thus, the first count, which was typical of the other counts alleging intent, charged:

"The Grand Jury of the County of Kings, by this indictment, accuse the defendants of the crime of ATTEMPTED MURDER, committed as follows:

"The defendants, each aiding the other and being actually present, on or about June 27, 1973, in the County of Kings, with intent to cause the death of JOSE COLON, attempted to cause the death of JOSE COLON by means of a deadly weapon, to wit: a loaded rifle, thereby inflicting divers wounds and injuries upon JOSE COLON."

The trial commenced on March 9, 1976. Defendants were represented by the same trial attorney. At the close of the entire case, the court reserved decision on a defense motion for "a directed verdict of acquittal" and for dismissal of each count of the indictment. (See CPL 290.10, entitled "Trial order of dismissal".)

On March 24, 1976 the jury returned a verdict of guilty against each defendant on all eight counts of the indictment. The defense renewed its motion for a directed verdict of acquittal and also moved to set aside the guilty verdicts as contrary to law and contrary to the weight of the evidence, arguing that guilt was not proved beyond a reasonable doubt. The Trial Judge reserved decision; on May 21, 1976 he rendered an oral decision in open court setting aside the guilty verdicts as to the three counts of attempted murder and the three counts of assault in the first degree, and dismissing the said counts on the ground that the People had failed to prove beyond a reasonable doubt the requisite specific intent to kill (or seriously injure) the named individuals. The court refused to set aside the verdicts as to the seventh count (reckless endangerment in the first degree) and eighth count (possession of weapons, etc.)

The Trial Judge's comments indicate that he was of the opinion that the People had indicted defendants under the wrong subdivision of the murder statute:

"It is the Court's feeling in the matter that in order for a defendant to be convicted under this count of the indictment there must be a specific intent to kill a specific person, or attempt to murder a specific person. And, in this case, after reading the first count, it would appear that the District Attorney would have to prove the defendants guilty beyond a reasonable doubt that they intended to cause the death of Jose Colon, because he is mentioned specifically in the indictment as the person for whom the intention was referred to.

"It is interesting to note that section 125.25 of the Penal Law also includes the second subdivision which subdivision reads 'Under circumstances evincing a depraved indifference to human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person'."

On June 14, 1976 an order was signed on the above decision, and it is from the branch of the order which sets aside the verdicts as to six counts of the indictment that the People cross-appeal. Defendants have appealed from the judgments rendered July 22, 1976 convicting and sentencing them on the two counts not set aside, viz., reckless endangerment in the first degree and possession of weapons, etc., as a misdemeanor.

In our opinion, the evidence was sufficient to establish beyond a reasonable doubt the guilt of each defendant with respect to each of the eight counts of the indictment. Accordingly, it was error for the Trial Judge to have set aside the guilty verdicts on the three attempted murder and three assault in the first degree counts.

The following summary of the principal testimony shows that the jury verdicts were fully supported by the evidence and should not have been set aside. It also shows, however, that there was a possible conflict in the interests of the defendants who were represented by the same trial attorney and that for the reasons stated at the conclusion of our decision, rather than reinstatement of the verdicts and affirmance of a judgment of conviction on all eight counts, there must a new trial as to the entire indictment.

The evidence presented to the jury was as follows:

On the evening of June 27, 1973, in the area of Fifth Avenue and Union Street, Brooklyn, New York, there was a large-scale riotous confrontation between "Italian" and "Hispanic" groups. The disorders spilled over onto nearby streets. The police aligned themselves along the middle of Union Street to separate the "Hispanics" to the north (Lincoln and Berkeley Places) and the "Italians" to the south (President Street).

Jose Roman testified that he and two friends went to the roof of 238 Fifth Avenue; he was looking towards Union Street and Lincoln and Berkeley Places with binoculars, "looking at the riots"; about 15-20 minutes later defendants came onto the roof and Allini told Roman and his friends to "get out of here." Roman testified that as he and his friends were about to go down the skylight, he observed Allini take a rifle from a shopping bag he was carrying and point it towards Union Street; "he took it out and he pointed down", at which time Allini's companion (codefendant Urritia) told Allini to "hurry up before they come."

At about 10:00 P.M. Jose Colon, while at the corner of Union Street and Fifth Avenue, and facing President Street, was shot in the neck by a bullet which penetrated his vertebrae and left him totally paralyzed from the shoulders down. The bullet that struck him was not recovered. That evening Reginald Owen crossed Fifth Avenue and stopped between Lincoln and Berkeley Places to see what was going on. Upon facing President Street he was shot in the leg. On the same evening Carlos Medina, while standing on the corner of Lincoln Place and Fifth Avenue, looking towards Union Street, at about 10:00 P.M., was shot in his arm.

Julio Pabon testified that on the night in issue he lived on the first floor at 238 Fifth Avenue. In the course of the evening defendant "Ralphie" Allini (who the witness had known for six or seven years) knocked on his door and "he told me that the police were after him, to please let him in my apartment." The witness did not let Allini in; he opened the door and closed it right away. Pabon did not see whether Allini was holding anything or was with anyone.

Jose Roman also testified to the effect that after being chased from the roof by defendant Allini, he and his companions, Alberto Aponte and Elgardo Pabon, ultimately went to the apartment of Julio Pabon. About 10-15 minutes after having seen Allini and Urritia on the roof, Roman heard Allini knock on Julio Pabon's door and saw and heard Allini refused admittance by Pabon. Roman added that a woman named Dotty (Wildes) lived across the hall and, after Julio Pabon had shut the door on Allini, Roman heard some other knocks (on the Wildes' door) but didn't see anything Julio Pabon's door was then locked.

Dorothy Wildes testified that at the time in issue she lived at 238 Fifth Avenue, Brooklyn, a six-family building located at President Street and Fifth Avenue. She had lived there for about 15 years and had known Allini and Urritia for 2-3 years; they were acquaintances of her son.

On the night in question, she had visited the hospital because her son and son-in-law, who had been shot that night "about nine thirty, maybe ten or ten thirty, I don't know", were there. She returned to her apartment about "ten or ten thirty that night, maybe later", "about twenty five to or twenty to eleven". There was a knock on the door "only a matter of minutes" after she had entered. She opened the door and saw defendant Ralph...