People v. Bongarzone

• Citation: 69 N.Y.2d 892,507 N.E.2d 1083,515 N.Y.S.2d 227
• Parties: , 507 N.E.2d 1083 The PEOPLE of the State of New York, Respondent, v. Francis BONGARZONE, Appellant.
• Decision Date: 02 April 1987
• Court: New York Court of Appeals

Page 227

515 N.Y.S.2d 227

69 N.Y.2d 892, 507 N.E.2d 1083

The PEOPLE of the State of New York, Respondent, v. Francis BONGARZONE, Appellant.

Court of Appeals of New York.

April 2, 1987.

Stephen R. Mahler, Kew Gardens, for appellant.

Elizabeth Holtzman, Dist. Atty. (Andrew J. Frisch and Barbara D. Underwood, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 116 A.D.2d 164, 500 N.Y.S.2d 532, should be affirmed.

Defendant was indicted on charges arising out of an automobile accident in which two people were killed. While incarcerated awaiting trial, the defendant allegedly conspired with a fellow inmate to arrange for the murder of an eyewitness to the accident. The inmate, never intending to aid the defendant, informed the police, who arranged for an undercover officer to pose as a hired killer and for a communication to take place between the defendant and the officer. The defendant instructed the undercover officer to contact his mother or sister who would provide a picture of the eyewitness and $300 as the first installment of a "payoff" for the murder. The defendant indicated that he would make arrangements with his family so that they would be expecting to be contacted. Although the police officer, posing as the "hired gun", telephoned defendant's mother and sister and arranged to meet them, the meeting never took place. As a result of these conversations, however, all of which were recorded, the defendant was additionally charged with conspiracy and criminal solicitation.

Before trial, the initial charges stemming from the auto accident and the ensuing charges of conspiracy and criminal solicitation, were joined pursuant to CPL 200.20(2)(b) in a single nine-count indictment. The jury found the defendant guilty on five counts, namely unauthorized use of a motor vehicle in the third degree, leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree. The Appellate Division affirmed.

On appeal from his conviction, defendant contends that the trial court erred by not granting his motion to sever the consolidated indictment. Pursuant to CPL 200.20(2)(b), two offenses, even though based on separate and distinct criminal transactions, may be joined in the discretion of the trial court if they are of such a nature that proof of either offense would be material and admissible as evidence-in-chief upon the trial of the other. Here, the evidence relating to the automobile accident was material and admissible to establish motive with respect to the conspiracy and criminal solicitation charges. Likewise, the evidence of the conspiracy and of the criminal solicitation was relevant to the issue of defendant's consciousness of guilt in relation to the automobile accident. Joinder of the offenses was within the scope of the trial court's discretion and once the offenses were properly joined, the court lacked statutory authority to sever (CPL 200.20[3]; People v. Lane, 56 N.Y.2d 1, 451 N.Y.S.2d 6, 436 N.E.2d 456).

Defendant also claims that it was reversible error to admit the recordings containing his inculpatory statements. These were elicited by the police in the absence of counsel and after counsel had been obtained with regard to the initial indictment. Defendant relies on Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481, in effect overruling People v. Mealer, 57 N.Y.2d 214, 455 N.Y.S.2d 562, 441 N.E.2d 1080, in which the Supreme Court ruled that postindictment statements elicited in the absence of counsel even where, as here, the statements are elicited as part of an investigation into a new crime, are inadmissible at the trial of the initial indictment but may be admitted...