People v. Aponte, 3061

• Decision Date: 09 July 1979
• Docket Number: No. 3061,3061
• Citation: 418 N.Y.S.2d 651,69 A.D.2d 204
• Parties: The PEOPLE, etc., Respondent, v. Rafael APONTE and Richard Valentine, Appellants. (Ind./76)
• Court: New York Supreme Court — Appellate Division

Page 651

418 N.Y.S.2d 651

69 A.D.2d 204

The PEOPLE, etc., Respondent, v. Rafael APONTE and Richard Valentine, Appellants. (Ind. No. 3061/76)

Supreme Court, Appellate Division, Second Department.

July 9, 1979.

William E. Hellerstein, New York City (Asher H. Miller, New York City, of counsel), for appellant Aponte

Harry Z. Berger, Brooklyn, for appellant Valentine.

Eugene Gold, Dist. Atty., Brooklyn (William Gurin, Brooklyn, of counsel), for respondent.

Before RABIN, J. P., and GULOTTA, SHAPIRO and MANGANO, JJ.

SHAPIRO, Justice.

We hold that defendant Aponte's conviction of manslaughter in the first degree and criminal possession of a weapon in the second degree, after a jury trial, should be reversed and the indictment as against him dismissed because his statement given to the police some three hours after he requested counsel, and his ensuing statement to an Assistant District Attorney, should have been suppressed. Absent such statements there was insufficient evidence presented at the trial to establish his commission of the alleged crimes.

We further hold that codefendant Valentine's conviction of manslaughter in the second degree and criminal possession of a weapon in the third degree should be reversed on the law, the facts and as a matter of discretion in the interest of justice, and the indictment against him dismissed.

THE FACTS

On August 26, 1976, at about 9:50 P.M., William Stewart was shot to death on Cleveland Street near its intersection with Glenmore Avenue, Brooklyn, New York. One month later, on September 25, 1976, Aponte was arrested at 7:15 P.M. and taken to the 75th Precinct in Brooklyn. There, at Some three hours later Aponte asked to speak to the detective who had arrested him, and told him he was ready to make a statement. Up to that time the police made no attempt to obtain a lawyer for Aponte nor (apparently) had they asked him if he had a lawyer whom he would want to call. He was again advised of his Miranda rights and this time he made a statement about the incident. He then asked that his cousin, defendant Richard Valentine, who had been with him at the scene of the incident and who had voluntarily surrendered to the police at 11:00 P.M. (September 25), be brought to him. The police produced Valentine who was then informed by Aponte that he had made a statement to the police and that Valentine should do the same. ¹ Valentine then did so without being told what Aponte had said.

about 8:00 P.M., he was advised of his Miranda rights and he refused to make a statement. Between 8:00 and 8:30 P.M. he was advised by the police officer that "he was going to be viewed (through a see-through mirror) by persons * * * who knew him before as being at the area" (i. e., the scene of the shooting). Sometime between 8:30 and 9:00 P.M. he was told that he had been identified by those persons as being at the scene. At 10:00 P.M. he was transferred to the 69th Precinct where, at about 10:15 P.M., he again received the Miranda warnings and again declined to make a statement. At about 10:30 P.M. an Assistant District Attorney arrived at the 69th Precinct and advised Aponte of his Miranda rights before attempting to question him. Aponte said that he didn't want to speak to him and that he "would like to have a lawyer first." Thereupon, the Assistant District Attorney terminated the interview and left the precinct. He gave no instructions to the police with respect to obtaining an attorney for Aponte.

The Assistant District Attorney was called to the precinct and both defendants made statements to him, similar to those they had given to the police, after being advised by the Assistant District Attorney of their Miranda rights, and waiving them. Redacted transcripts of the statements given to the Assistant District Attorney were admitted into evidence both at the Huntley hearing and at the trial.

APONTE'S STATEMENT TO THE ASSISTANT

DISTRICT ATTORNEY

"We had just come out of the movies. And it was still kind of early. So we rode a couple of hours (in Aponte's car) and we decided that we were going to * * * get something to get high on * * * We went to Glenmore and Jerome (Avenues, in East New York) and we inquired for a few things. We left the area and we started walking toward my car * * * As I crossed the street, these two Black fellows approached us from behind * * * The one that was to my right, he pulled out a gun and he said, don't turn around * * * I kept on walking. We got to the corner. He put the gun to my back * * * And he told me not to look around. He put the gun to the back of my neck and he cocked it. There was a hallway here. And he told us to go in there and we went in there and they said, give us all your money and don't do anything or we will blow your brains out. He asked me, how much money I had. And I said, I don't know. I went into my pockets just to get my money. And he pushed me. He said, if you come out with a gun, I will kill you * * * (H)e took the money that I had in my pockets * * * The other fellow was doing the same thing to Ritchie (Valentine) * * * They were arguing because they said there wasn't enough money.

"I had some money but I left most of it in my car * * * This other fellow he kept on pumping and insisting we had more money. He pulled my socks down. I was very humiliated, very sad, very nervous * * * My car was right there on the corner. They told us to keep walking and I "We walked to my car. I had a gun in my car. We were deciding what to do. Ritchie suggested we go to the police. And I said, maybe we should. And then I said, they are not going to do anything because my girlfriend's apartment had been robbed. My mother had been robbed. It seemed like the same thing was happening to me. We decided not to go to the police. So Ritchie suggested, just get out of here * * * My mother's home was on Jerome (Avenue). I was very nervous. So I suggested we go to my mother's house. We turned down Cleveland Street and we observed the two guys that had just finished robbing us * * *

didn't want to go to the car because I was afraid they might try to rob the rest of my money and my (Human Resources Special Administration) shield * * * Then they told us to keep going. They kept on following us. We turned the corner and we went down the block * * * We walked around a little while and finally we came back around the block and they were gone.

"I stopped the car (double-parking it) next to a van that was parked there * * * The fellow * * * was approaching the car and he put his hand in his pocket or in his * * * waistband * * * I got very cautious and I placed the gun on the floor of the car. He came up to the car and he said, what do you want. And I said * * * (w)e want our money back.

"At that time he started going for the piece. And it must have gotten caught in his waistband. And I picked up mine. And his partner started running. I said, watch him, I figured they had gone * * * When the fellow ran past the van, I figured that he was going to keep running, but he turned and he pulled the gun and I fired * * * (j)ust once * * * It seems like he was going to go past the van and when he pulled out the gun, he spun around with the gun and I fired one shot. He grabbed his side and he said, oh, my God * * * (T)hen I said, let's get out of here. I didn't believe what had happened * * *

"He (had been) running. He was at the car and he was pulling out the gun. It was when I saw him pulling out the gun. It must have gotten caught in his waistband. So I took my gun out * * * and I pointed it. I didn't fire. All I wanted was my money back * * * (H)e turned and started running towards the sidewalk * * * When he got (past) the car, he spun around. And he had the gun in his hand * * * And he turned, aimed it at us, and I just fired."

In response to questioning, he stated that at the time the engine of his automobile was still running and that it was in neutral. He was asked whether there was anything stopping him from driving away at that time and he answered "No." He guessed that he could have driven away but stated: "I wasn't thinking, I didn't know what I was thinking about when his friend ran towards the back of the car. I figured maybe he was coming on the other side because they were very, very bold. There was so much in my mind. I was confused. I wasn't really thinking at that time. I really wasn't aware. I didn't even know that the car was on. I was intent on the situation. I didn't want to get shot. It happened so fast. I didn't think I really had an opportunity to drive away * * * I didn't plan it. I didn't plan on firing, it just happened."

He stated that the gun was a .22 Magnum; that he had had it for two months and had paid $150 for it; and that he did not have a permit for it. In response to the question as to where he had obtained it, he answered, "I would rather not say."

After defendants left the scene, he threw the gun away into "the Mill Basin by the creek" behind the "pink houses." He had never used the gun before. He stated, "I just happened to have it with me that day because I had quite a bit of money on me. It was just in the car."

VALENTINE'S STATEMENT TO THE ASSISTANT DISTRICT ATTORNEY

"(M)e and Ralph Aponte, we went down to score something to get high with. (We went t)o Jerome Avenue and Glenmore "On the way back, there were these two colored guys on the corner * * * They got close to us * * * I noticed one of them had his hands in his pocket. It was too late for us to turn back. As soon as we got to the corner, the guy took his gun out and he stuck it in our back and he said, don't move * * * We were outside while the one guy held the gun on us this other guy he searched us. Before he searched us, he said, gimme your money. I took out two dollars and when he saw that he looked in my pocket and he saw ten dollars. He looked at my ring. They searched Ralph. He didn't have nothing. Then this other guy, he said, is this all you got. And we...