People v. Bagarozy

• Decision Date: 15 December 1987
• Citation: 132 A.D.2d 225,522 N.Y.S.2d 848
• Parties: The PEOPLE of the State of New York, Respondent, v. Edgar Richard BAGAROZY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 848

522 N.Y.S.2d 848

132 A.D.2d 225

The PEOPLE of the State of New York, Respondent, v. Edgar Richard BAGAROZY, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 15, 1987.

David K. Bertan, Glen Head, of counsel (Peter D. Coddington with him on brief; Mario Merola, New York City), for respondent.

Steven Wasserman, of counsel (Philip L. Weinstein, New York City), for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, MILONAS, ROSENBERGER and ELLERIN, JJ.

SULLIVAN, Justice.

Charged with engaging in four acts of oral sodomy with three youths, Dennis M., Manuel (Manny) O. and Angel J., defendant was convicted by a jury of two counts of sodomy in the second degree (Penal Law § 130.45) ¹, for which he was sentenced to consecutive terms of imprisonment of from three and one-half to seven years. The proof of each crime was provided by the particular victim, who, being under the age of legal consent, testified that he had permitted the thirty-seven year old defendant to place his mouth on the victim's penis in exchange for being taken to the movies or to an amusement park.

The charges involving Dennis were dismissed after an in-court recantation. He attributed his false accusation to police threats to incarcerate him and expose his own homosexuality. In his testimony, Manny, Dennis's friend, repudiated a similar recantation, which had been broadcast on television, attributing his previous recantation to anger at the police. He testified to two uncorroborated incidents. The charges relating to the first incident were dismissed for lack of corroboration as required by former Penal Law 130.16. Defendant was convicted of the charge involved in the second incident, despite Manny's confusion as to whether it had occurred before or after November 1, 1984, the effective date of the repeal of former Penal Law 130.16. Defendant was also convicted of the charges relating to an incident described by Angel.

Defendant, who would have been exposed to questioning about one of his two prior sodomy convictions by virtue of the court's Sandoval ruling, chose not to testify. The prosecutor nevertheless made his sexual orientation the central focus of the trial, as she filled the record with evidence of defendant's propensity to engage in sexual activity with young boys. She introduced evidence that he was affiliated with the newsletter of the North American Man-Boy Love Association (NAMBLA), an organization that advocates sexual activity between adults and boys, as proof of his "intent" to commit sodomy, that he had been previously known to the police as a pedophile, and that he had raised a constitutional challenge in federal court to the statute under which he was being prosecuted. Her summation concluded with the stinging rebuke that defendant had joined with NAMBLA to "stop the little children from coming to Jesus." Since we are unable to ascertain any justification for these trial tactics and find that defendant was denied his basic right to a fair trial, we reverse the conviction and remand for a new trial.

The trial testimony disclosed the following. Several days after an initial introduction to defendant sometime in February of 1984, thirteen year-old Manny found himself alone with defendant in the latter's apartment, where they watched movies on the VCR. Later, as they watched television in the bedroom, defendant began "playing with" Manny, touching his hair, and "patting" his head. After defendant promised to take him to Action Park, Manny allowed defendant to place his mouth on Manny's penis.

In November of 1984, approximately one week before Thanksgiving, Manny was again present in defendant's apartment with defendant and another youth named Luis. Defendant told Manny that he would take him to the movies if Manny would engage in oral sex with him. Manny agreed and defendant took him to the bedroom, where he placed his mouth on Manny's penis. Afterwards, defendant took Manny and Luis to the movies.

On or about the 8th or 10th of January 1985, Angel, eleven years of age, accompanied by Luis and a boy named Tony, visited defendant's apartment. Luis and Tony went into the bedroom while Angel watched television. Sometime later, Angel entered the bedroom, where he observed Tony and Luis with their pants down. Defendant who was also in the bedroom, pulled Angel's pants down, put him on the bed, and then placed his mouth on Angel's penis. After Angel returned to the living room, defendant remained in the bedroom with Luis and Tony.

Shortly after his arrest on January 15, 1987, defendant telephoned Manny from Rikers Island to tell him that he did not want him to say anything to the police about the incidents in his apartment. Approximately two weeks before the trial, defendant again telephoned Manny, who was staying in Florida, and told him that if he did not come to New York, defendant would "be alright", and the charges would be dismissed.

Both Tony and Luis, each of whom was fourteen at the time of trial, testified on defendant's behalf. Tony, who had known defendant for approximately two years, denied ever having any sexual contact with defendant, or ever taking his pants off or having had his pants taken off in defendant's presence. Nor did he ever see Angel take his pants off in defendant's presence.

Luis testified that he visited defendant's apartment on approximately nine occasions, on several of which he met other men. Defendant never touched him in "a sexual way", nor asked to touch him. Not only did he not engage in sex with defendant, but he never saw Angel "do anything" of a sexual nature in defendant's presence. Sometime after defendant's arrest, he testified before the Grand Jury and told the jurors that he never engaged in sexual activity with defendant.

To appreciate fully the extent of the prosecutor's preoccupation with defendant's sexual propensities, a brief overview of her trial tactics is in order. Immediately before the trial was to commence, she sought leave to introduce, on the People's case, defendant's two prior 1983 convictions of sodomy in the second degree. The prosecutor argued that since both convictions and the present charges involved acts of oral sex with underage Hispanic youths, all of which took place in defendant's bedroom, the convictions were direct proof of his intent and a common plan or scheme with respect to the present charges. The trial court denied the application "at this point", but added, "It may well be at the close of the case and before you rest that you might want to repeat that application." Concerned about inadvertently opening the door to the convictions, defendant's attorney sought guidelines, which the court declined to set. Instead it reiterated that the convictions "may very well become relevant at a later point."

The court also declined to rule on defendant's motion, in limine, seeking to exclude literature, photographs and films taken from his apartment pursuant to a search warrant executed after his arrest. The literature consisted of NAMBLA newsletters, to which defendant was a contributor. According to the prosecutor, the materials, which, inter alia, included an erotic poem entitled "The Coupling" about a man performing oral sodomy on a boy, might prove to be admissible on the issue of intent. The court deferred its rulings on the material, and directed the prosecutor to apply for advance rulings.

Defendant's opening statement acknowledged that the evidence would show that he was a homosexual who has friendships, but "not wrong friendships", with young men. The police, however, on the basis of an anonymous complaint received during a period of highly publicized child abuse cases in the Bronx, had begun a surveillance of him. He argued that the evidence would show that the police, perceiving his homosexuality, and fearing the worst about his friendships, sought to confirm their suspicions through aggressive interrogation of supposed victims. With threats of incarceration and other pressure tactics, the police eventually succeeded in inducing false accusations against him.

Nine days later, and just before Sergeant Maginnis of the Public Morals Division of the New York City Police Department, who had investigated the complaint against defendant and eventually arrested him, was to testify, the prosecutor renewed her pre-trial application for leave to introduce evidence of defendant's background. Citing a remark in defendant's opening statement that the police had been surveilling him because of his homosexuality, the prosecutor sought to elicit the true basis of their suspicions, viz., that defendant, based upon his sodomy convictions and his affiliation with NAMBLA, was "a known pedophile." Noting that the remark "suggest[ed] to this jury that the investigation was based on the homosexual character of the defendant rather than any other purpose", the court ruled that the People should be permitted to show the background of the police investigation, but it adhered to its initial ruling excluding any reference on their case to defendant's criminal background. As to the police investigation, the court ruled that Sergeant Maginnis could testify, without going into its content, that he received a telephone call which led an investigation that eventually focused on defendant, who, according to his information, was believed to be a pedophile.

During the examination of Sergeant Maginnis, after the prosecutor had elicited that he began a surveillance on the basis of a telephone complaint and two interviews with one of the young boys, the following transpired:

Q: Did you receive any information through the police department morals division files about the defendant that also led to your focusing in on him and your surveillance of his home?

A: Yes.

[Defendant's attorney]: Objection to the form of the question.

THE COURT: I'll permit the question.

Q: And what was that information?

A: The subject was known to the...