People v. Berzups

• Decision Date: 20 February 1980
• Citation: 402 N.E.2d 1155,49 N.Y.2d 417,426 N.Y.S.2d 253
• Parties: , 402 N.E.2d 1155 The PEOPLE of the State of New York, Respondent-Appellant, v. Harry BERZUPS, Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 253

426 N.Y.S.2d 253

49 N.Y.2d 417, 402 N.E.2d 1155

The PEOPLE of the State of New York, Respondent-Appellant, v. Harry BERZUPS, Appellant-Respondent.

Court of Appeals of New York.

Feb. 20, 1980.

Denis Dillon, Dist. Atty. (Anthony J. Girese and William C. Donnino, Mineola, of counsel), for respondent-appellant

Richard Simon, Mineola, for appellant-respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

During a holdup at a drugstore in West Hempstead, Long Island, an elderly pharmacist, then on duty alone, was brutally attacked and killed. It is not disputed that the appellant, Harry Berzups, and his codefendant, Michael Massurin, acted in concert to commit the robbery of which the other crimes were the denouement. Tried together, they were each convicted of felony murder (Penal Law, § 125.25, subd. 3), intentional murder (Penal Law, § 125.25, subd. 1), robbery in the first degree (Penal Law, § 160.15), petit larceny (Penal Law, § 155.25), and possession of a dangerous weapon (Penal Law, § 265.01). In due course, they received concurrent sentences of imprisonment of 25 years to life on each murder count, zero to 25 years on the charge for robbery and one year each on the larceny and weapon charges.

Subsequently, the Appellate Division, while affirming the defendants' convictions of all other crimes, reversed the robbery conviction as to each defendant on the rationale that, as the predicate for the felony murder conviction, it necessarily was a lesser inclusory count of that crime.

On this appeal by Berzups alone, ¹ a primary contention is that the consequence of the trial court's rejection of his pretrial motion for a severance was to expose to the jury the inculpatory extrajudicial statements by Massurin, which, because the latter did not take the stand and therefore could not be cross-examined, deprived Berzups of his constitutional right to confrontation. It is also argued that it was error to deny Berzups' motion to suppress, as the products of unlawful arrest and warrantless seizure, his own oral admissions, his bloodstained shoes and trousers and blood scrapings the police had taken from under his fingernails. Among other things, he takes the position too that the trial court should have granted his request that assault be charged as a lesser included offense of intentional murder. In addition to our being called upon to pass on these and certain subsidiary questions, the prosecution, by way of cross appeal, insists that, though the robbery served as the predicate for the felony murder charge, the conviction on that score also enjoyed a separate, self-standing status of its own and therefore should not have suffered a reversal. On the analysis which follows, we conclude that each of these propositions must be decided against the defendant.

The facts on which these issues rest are as simple as they are gruesome. Whatever seeming complexity there is arises out of the shifting stories by which each of the perpetrators, though ultimately conceding a crucial role for himself would place the onus for dominance in their criminal undertaking on the other.

The relevant details start with the murder victim, whose body was discovered perforated by knife wounds, his jaw broken, his eye socket crushed, his skull shattered. It was evident that blunt forces in the form of a series of kicks and hammering with gallon-sized pharmaceutical glass jugs, the remnants of which were shattered about his body, had delivered violent blows to his head.

After removing the victim's body to the hospital, an order slip the police found at the store led them to the defendant Massurin, who initially told the officers that he and Berzups had entered the store and forced the druggist into the rear at knifepoint. However, on further questioning, he soon changed his tale to claim that Berzups had suggested the robbery and that, though he and Berzups had entered the store, it was the latter who displayed a knife and forced the murdered man into a back room from whence Massurin heard sounds of scuffling and then saw Berzups stab the pharmacist. In the final session of what was in effect a telescoped confession, Massurin stated he had thrown several jugs at the man on returning to the store briefly before he and Berzups departed.

Massurin's information put the police on the trail of Berzups, whom they took into custody to police headquarters where, upon being advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, he insisted he knew nothing of the crime. At this time, a detective noticed that Berzups' white shoes were stained in a reddish color on one heel and that he had a cut on one of his fingers, whereupon the police took possession of his shoes and had their scientific investigation bureau scrape the residue from under his fingernails. Shortly afterward, Berzups decided to make a fuller disclosure in which he related that it was Massurin who had proposed that they rob the drugstore and that, upon going there for that purpose, Berzups stood at the store entrance while Massurin first pushed the pharmacist into the back room and then began "throwing bottles into something", later also telling Berzups that he had thrown a jug at the old man to prevent him from identifying his assailants. But when asked to sign a written statement, Berzups refused to do so and asked to speak to a lawyer, a request which the suppression Judge was to find was respected by cessation of further interrogation. However, pursuant to a warrant, a search of Berzups' room turned up a pair of trousers with smatterings of blood on the cuff area of each leg and a quantity of drugs which proved to be of the same type stolen from the drugstore on the day of the murder. Later, police investigation led them to a bloodstained leather jacket, which one Leonard Holl had purchased from Berzups after the robbery.

At trial, Holl and Berzups added some further details. Holl testified that Berzups had confided in him that, on Massurin's instructions, Berzups had tied up the druggist while Massurin ransacked the store and that, when the victim began to struggle, Massurin yelled, "Knock him out, knock him out", in response to which Berzups kicked the elderly man in the jaw. According to what Berzups told his friend Holl, it was then that Massurin suddenly pulled out a knife and repeatedly stabbed the druggist. Berzups, for his part, told the jury that it was he who announced "this is a stickup", forced the pharmacist into the back room, tied his hands behind his back and, explaining that he had been influenced to do so by Massurin, worked himself into a "paranoid" frenzy in the course of which he kicked the floored victim in the jaw.

These facts in mind, we first note that this court has for some time made clear that the right of an accused to be confronted by the witnesses against him (U.S.Const., 6th Amdt.; N.Y.Const., art. I, § 6) is not violated when one of several defendants has himself made a full and voluntary confession which is "almost identical" to the confessions of his implicated codefendants (People v. McNeil, 24 N.Y.2d 550, 552, 301 N.Y.S.2d 503, 249 N.E.2d 383; see Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713).

As had the Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, we recognized that it is often not enough for the trial court to administer cautionary instructions that a jury is not to consider incriminating statements as evidence of guilt of anyone but the one who utters them. For, the admission of an extrajudicial confession of a defendant who, if he does not take the stand, remains beyond the scrutiny of cross-examination, deprives the codefendant who is implicated in that confession of his right to confrontation (Bruton v. United States, supra, at pp. 127-128, 135-136, 88 S.Ct. at pp. 1623, 1627-1628). But, while sensitive to the devastating potential of such prejudice, we have been unanimous in our realization that a codefendant's confession need not violate the spirit of the Bruton rule when the implicated defendant himself has made a confession close enough...