People v. Bartolomeo

• Decision Date: 30 March 1987
• Parties: The PEOPLE, etc., Respondent, v. Peter BARTOLOMEO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 981

513 N.Y.S.2d 981

126 A.D.2d 375

The PEOPLE, etc., Respondent, v. Peter BARTOLOMEO, Appellant.

Supreme Court, Appellate Division Second Department.

March 30, 1987.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, of counsel), for respondent.

Before MOLLEN, P.J., and LAWRENCE, WEINSTEIN and KUNZEMAN, JJ.

MOLLEN, Presiding Justice.

The instant appeal arises out of the defendant's conviction, following a retrial, of felony murder in connection with the shooting death of John Mc Loughin on April 15, 1978, which occurred while the defendant and an accomplice were burglarizing the decedent's home. The defendant's first felony-murder conviction was reversed by the

                Court of Appeals in an opinion which established the rule that a suspect whom authorities knew or should have known was then represented by counsel on an unrelated charge, cannot waive his right to have an attorney present during police questioning unless the attorney is present during the waiver (see, People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371).   On the present appeal from his second murder conviction, the defendant raises several alleged errors which he claims deprived him of a fair trial, including prosecutorial misconduct, alleged bias and prejudice of the Trial Judge and the alleged systematic exclusion of persons 18 to 20 years old from the jury pool.  We have reviewed all of the defendant's arguments and find them to be without merit
                

THE FACTS

The People's Case

For a period of approximately one year prior to his death, the decedent, John Mc Loughlin, lived at 9 Otsego Avenue, Dix Hills, in Suffolk County, with his friend Eddie Foster. In December 1977 James McKendrick, a friend of Foster, visited 9 Otsego Avenue with his friend Joseph Caprisecca for the purpose of purchasing marihuana. McKendrick introduced Caprisecca to Foster and the three men smoked marihuana together. While in the house, Caprisecca noticed that the home was well furnished with valuables, including a television set and stereo system.

On January 7, 1978, Caprisecca was in a bar in Deer Park with another friend, Richard O'Gorman, when he asked O'Gorman if he was interested in burglarizing a house in Dix Hills. O'Gorman agreed, and that night, after gaining entry to the Mc Loughlin-Foster home, the two men took a television set and stereo speakers. Several weeks later, Caprisecca was in the Finish Line bar located in Deer Park, where he met McKendrick. McKendrick told Caprisecca that Foster's home had been burglarized in early January but that the burglars had not found the money and guns which were kept in the house.

Sometime in March 1978 Caprisecca met the decedent at the Finish Line bar. The defendant, whom Caprisecca had known previously, asked Caprisecca if he knew anyone who was selling guns. Caprisecca indicated that he might know someone and telephoned McKendrick. McKendrick told Caprisecca that he was interested in selling a gun and that he would come over to the bar. Upon his arrival, McKendrick was introduced to the defendant, and they made arrangements to meet with McKendrick's friend, Ralph Giordano, who had the gun. Later that night, the defendant purchased the gun, which was a .22 caliber automatic, from McKendrick for $100.

On the evening of April 14, 1978, Caprisecca was at the Finish Line bar when the defendant entered the bar at approximately 10:00 P.M. The defendant was dressed in jeans, boots and a leather motorcycle jacket. During their conversation, the defendant said that he was in need of funds and wanted to know if Caprisecca knew where he could get some money. At that point, Caprisecca stated that he had previously burglarized Foster's home in Dix Hills, but was later informed that money and guns were still in the house. Both men then agreed to burglarize the house that evening. As the two men left the bar, the defendant stated that if any guns were found in the house, he would pay Caprisecca $50 for "whatever guns we found". At that point, Caprisecca observed that the defendant had a gun in the waistband of his pants. The two men then got into the defendant's car, a light green Volkswagen, and drove to Foster's home.

While they drove by Foster's home, at approximately 10:30 P.M., the defendant and Caprisecca observed several cars in the driveway and people in the house. They decided to go back to the bar and return to the house later that night. After a few drinks, the two men left the bar for a second time at about 12:00 midnight, and drove back to Foster's house in the defendant's car. As they proceeded past the house, they observed that only one car was parked in the driveway and a few lights Caprisecca returned to the car and instructed the defendant to move the car because it was in an area where there was too much light and too many people. The defendant made a U-turn and parked the car further down on Seneca Avenue. When the two men were exiting the vehicle, the defendant said, "Remember what I got in case there's any problem". Caprisecca responded, "There's not going to be any trouble because we're doing a burglary; nobody's home".

were on in the house. They drove to the end of the block, turned around and stopped in front of Foster's house. Caprisecca exited the car and directed the defendant to park the car at the nearby corner of Otsego Avenue and Seneca Avenue. Caprisecca went to the house and rang the doorbell a number of times. He also looked through the window of the front door and concluded that no one was at home.

Unbeknownst to the defendant and Caprisecca, as they were walking towards the Mc Loughlin-Foster house, they were being watched by Rose Poukamissas and her brother Angelo, who lived on the corner of Otsego Avenue and Seneca Avenue. Rose Poukamissas had seen the defendant's car drive down Seneca Avenue and park. As the two men passed by their house, Rose and her brother Angelo noticed that one of the men was three or four inches taller than the other and was wearing a leather motorcycle jacket and boots.

Caprisecca and the defendant gained entry to the Mc Loughlin-Foster home through the unlocked front door. Caprisecca opened a closet near the front door and discovered a tape deck which he then placed on the floor near the front staircase. The defendant proceeded upstairs while Caprisecca remained on the first floor and went to the rear of the house. While he was in the den, Caprisecca heard gunshots being fired and someone yelled, "Ah, Ah". Caprisecca ran to the front of the house and as he looked up the staircase, he observed someone fall face down at the top of the stairs. Caprisecca did not see the defendant and ran out of the house through the rear sliding glass doors. As Caprisecca ran by the front of the house, the defendant darted out the front door. The two men proceeded hastily to the car, and when they ran by the corner of Otsego Avenue and Seneca Avenue, they were again observed by Rose and Angelo Poukamissas.

Once in the car, Caprisecca asked the defendant what had happened. The defendant replied that when he broke into a room, he did not expect anybody there, but the victim came at him with a pillow and he "just blew that [guy] away". The defendant, in an effort to dispose of the gun, drove to the Babylon docks located at the end of Fire Island Avenue. The defendant exited the car, took the gun out of his boot and threw it into the water. When the defendant returned to the car, Caprisecca indicated that they should make an anonymous phone call to find out if the person in the house was still alive and needed assistance. The defendant responded, "The guy's dead and you ain't calling nobody. We're going back to the Finish Line and we'll establish an alibi there. Everybody there knows us. No one will think we left or anything".

The two men arrived back at the bar before 1:00 A.M. Caprisecca ordered a drink while the defendant began talking with Steve Manteiga. After he finished his drink, Caprisecca went home.

Meanwhile, the defendant and his friend Manteiga remained at the bar. According to Manteiga, the defendant came up to him at the bar at about 1:00 A.M. and said, in a low voice, that he had just "shot a guy". The defendant then asked Manteiga to accompany him to the men's room. Manteiga described his conversation with the defendant as follows:

"Peter told me he went on a burglary with Joseph Caprisecca in Deer Park [sic ], and he was upstairs and Joey was downstairs in the house. And he was upstairs checking the rooms, and one of the doors were [sic ] locked and he forced open the door by kicking it open. And when he kicked it open, this guy jumped Following the aforesaid conversation, the defendant asked Manteiga to accompany him outside the bar. The two men walked over to a Carvel ice cream store located next to the bar and the following occurred:

                up with a pillow in his hand and he shot him.  And then he told me he was worried about--Being that he shot him with a .22 automatic, he was worried about the cartridges being on the floor with his fingerprints on them.  Was [sic ] worried about being caught for that.  And he asked me if--you know, what he should do.  And then he said, 'Would you want to--Can you go back there with me and get them?'   I said, 'No.  What are you, nuts?   I'm not going to go back there.' " 1
                

"A He repeated what he had told me in the bathroom, that him and Joseph--Joey Caprisecca, they went on a burglary in Dix Hills, and that he was upstairs and Joey was downstairs. And he was checking the doors upstairs. One of the doors was locked. He forced it open by kicking it open. A man came at him, shot--and he shot the man, and he was worried about his fingerprints being left on--on the cartridges, being that it was a .22 automatic. Then he told me that Joey was wearing gloves during the burglary and he had a handkerchief wrapped around his hand. And then

"Q What did he say in relationship to that?

"A Can you repeat that?

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