People v. Arce

• Decision Date: 07 July 1977
• Citation: 42 N.Y.2d 179,366 N.E.2d 279,397 N.Y.S.2d 619
• Parties: , 366 N.E.2d 279 The PEOPLE of the State of New York, Respondent, v. George H. ARCE, Appellant. The PEOPLE of the State of New York, Respondent, v. Efrain Nieto CAMARA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 619

397 N.Y.S.2d 619

42 N.Y.2d 179, 366 N.E.2d 279

The PEOPLE of the State of New York, Respondent, v. George H. ARCE, Appellant.

The PEOPLE of the State of New York, Respondent, v. Efrain Nieto CAMARA, Appellant.

Court of Appeals of New York.

July 7, 1977.

Thomas N. O'Hara, Newburgh, for appellant in the first above-entitled action.

Kenneth Gribetz, Dist. Atty. (William Frank and Thomas E. Urell, New City, of counsel), for respondent in the first above-entitled action.

Amanda Potterfield and Pierce Gerety, Jr., for appellant in the second above-entitled action.

Kenneth Gribetz, Dist. Atty. (William Frank and Thomas E. Urell, New City, of counsel), for respondent in the second above-entitled action.

FUCHSBERG, Judge.

George Arce and Efrain Nieto Camara each stand convicted of two counts of murder and one count of the felony of conspiracy in the first degree following the fatal shooting of John Morales and Manuel Carrero on the Palisades Parkway in Orangeburg, Rockland County, early in the morning of Monday, April 30, 1973. The People contended that the murders had been committed for hire, the shooting having been executed by Camara and one Rafael Martinez Perez at the instance of Arce, who had agreed to pay the gunmen $10,000 for the deadly deed. Shortly before tria Perez, originally indicted along with the other two, entered a plea of guilty to manslaughter and turned State's evidence.

The Appellate Division affirmed the conviction in each case. On this appeal, defendants rely on a host of alleged trial errors and contend that they were deprived of their fundamental right to a fair trial. Among the contentions are that the trial court erred in its rulings and charge on corroboration, in failing to grant a mistrial because Camara was asked whether he had remained silent at the time of his arrest, in participating in the cross-examination of Perez as to the motivations for his entry of a plea, and with respect to various incidents of prosecutorial misconduct. After reviewing each of them, we find that none support a reversal.

Some exposition of the facts will be helpful to an understanding of our legal analysis. We note first that Arce, who was not present at the time and place of the actual shooting, did not testify. Camara did take the stand; he and Perez testified most fully. They agreed that, soon after 6 a. m. on the morning of the murders, Camara and Perez drove together in the latter's car to Rockland County from the southern part of The Bronx, where each of them resided and had known one another for some years, that they did so pursuant to an arrangement they had made on the previous evening, and that there came a time when they parked at the Mt. Ivy Diner at a point adjacent to Exit 11 of the Palisades Parkway from which they could view southbound parkway traffic. Nor do they differ on the fact that, as soon as a blue Mustang occupied by Morales and Carrero drove by, Camara and Perez entered the highway and took chase after the Morales car until Perez caused the two to collide. They also both testified that right after the impact both cars pulled over to the shoulder of the road, whereupon, their occupants having exited, Morales, the driver of the Mustang, was shot to death and that Carrero, his passenger, suffered a similar fate as he was attempting to run away. They each also told the Judge and jury that no cars other than these two and no men other than these four played any direct part in this episode and that Perez and Camara were still together when, having abandoned their damaged car and discarded the guns used in the killings, they were apprehended by the police while attempting to leave the area by foot.

From this point on the tales of Camara and Perez diverge. Perez testified as follows: The first time he ever met Arce was on Sunday, the day before the shooting, when Camara, whom he had known as a neighbor for some years, introduced him to Arce. All three went to a neighborhood Kentucky Fried Chicken store and a gas station. At Arce's request Perez agreed to use his car to drive Camara "upstate" the next morning. Before they separated, Arce informed Perez that his destination the next morning was to be the diner off Palisades Parkway Exit 11, where Arce said he would meet Camara and Perez. The next morning, when the latter arrived there, they found Arce and a man unknown to Perez waiting for them. Camara had explained to Perez that Arce was going to pay Camara $10,000 "to eliminate somebody" and that Camara would give Perez $4,000 for driving the car. When they met Arce at the diner, he told them "the guy I want you to kill" would be a man who would soon be driving by in a blue Mustang. Shortly thereafter he pointed out a passing Mustang as the one he intended. Perez took off after it, Camara telling him to "catch up" and, when they were behind the other car, handed him a gun, saying "just in case". At Camara's instructions, Perez caused the collision, after which both cars stopped and their occupants alighted. Perez was still next to his own car when he observed the driver of the Mustang checking his car. At that point Camara pulled out a gun, Perez heard a shot and Camara commanded him to "shoot the other man", which Perez did.

Camara's version did not square with that of Perez. He pictured himself as an innocent bystander. He denied ever having met Arce until after he was arrested, insisting that he found himself in the car the morning of the shooting because Perez had offered to drive him to a Rockland County factory to try to find a job, though it turns out that he already had one. He admitted stopping at the diner, but denies seeing Arce there. According to him, when they left the diner area Perez' car, which had been speeding, collided with the blue car, which had slowed down unexpectedly. An argument then ensued between the two drivers, in the course of which the Mustang's driver (Morales) drew a gun and Perez "jumped him". He went on to relate how during the struggle, "the gun went off two or three times", after which Perez pursued Morales' companion, Carrero, and shot him too.

In short, according to Camara, he had possessed no gun, planned no murder, shot no one and the episode, so far as he was concerned, was a completely unexpected event for which he was blameless. His defense consisted solely of his testimony. He offered no explanation of why, if the shooting had indeed been precipitated by Morales' resort to a gun, Perez, who had already involved Arce and obtained the District Attorney's consent to his plea to a lesser offense, should have found it necessary not only to implicate Camara but to relate a false version contrary to his own self-interest.

Be that as it may, Camara's main difficulty was that, aside from any inherent improbabilities in his story, there was overwhelming proof to contradict it. For one thing, Henry Goldman, a motorist in the immediate vicinity of the events, testified that he observed that Morales was not engaged in a fight but merely inspecting the rear of his car when a shot rang out and Morales' body convulsed "as if hit by gunfire". Another and equally disinterested motorist, Rocco Marino, provided confirmatory testimony. Two witnesses other than Perez testified that they too had seen Camara with Arce the evening before the homicides. One of them, Feliz Burgos, a friend of Arce's for about 10 years, related that he had seen Arce, Perez and Camara together the night before, as had his fiancee, Minerva Cuadros, an employee at the fast food place where the three men went to purchase chicken. Burgos had driven to the fast food place to take her home from work that night. The car in which Camara was seen by them, a Chevelle Malibu, was later identified as a vehicle rented by Arce.

So far as the case against Arce is concerned, additional proof from a licensed wholesale firearms company and from a female acquaintance of Arce established that the gun used to kill Morales had been purchased by Arce and delivered to him through the friend's address in Maryland. Burgos, who testified under a grant of immunity, also told the jury that, some months before the killings, Arce had confided in him that he "was going to get (Morales)".

With these facts as background, we now turn first to the questions involving the accomplice testimony. Perez, by his own admission one of the actual perpetrators of the crime, was an accomplice and the trial court so charged as a matter of law. The trial court also held that his testimony was corroborated sufficiently for the case against Arce to go to the jury. Having excepted to that ruling, Arce now assigns it as error. Moreover, Camara now urges that the trial court also erred in refusing his request to charge that Burgos too was an accomplice as a matter of law. We do not agree with either of these contentions.

The statutory standard is that a "defendant may not be convicted * * * upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with (its) commission" (CPL 60.22, subd 1). It need not prove the commission of the crime. It is enough if the evidence shown to connect the defendant with the crime satisfies the jury that the accomplice is telling the truth (People v. Daniels, 37 N.Y.2d 624, 629-630, 376 N.Y.S.2d 436, 439-441, 339 N.E.2d 139, 141-142, citing People v. Malazia, 4 N.Y.2d 22, 27, 171 N.Y.S.2d 844, 846, 148 N.E.2d 897, 899, and People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752, 753).

As to Perez' testimony, the corroboration here was more than sufficient to meet that test. Indeed, it can be said to have come from several different sources. The proof of the direct connection between the gun used in the commission of the crime and Arce, the evidence that Arce had rented the car in which he was seen with Perez and Camara the evening before the shooting and the testimony of Minnie Cuadros each would have sufficed even without the testimony of...