People v. Caprio

• Decision Date: 14 March 1966
• Citation: 268 N.Y.S.2d 70,25 A.D.2d 145
• Parties: The PEOPLE, etc., Respondent, v. Pasquale CAPRIO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 70

268 N.Y.S.2d 70

25 A.D.2d 145

The PEOPLE, etc., Respondent, v. Pasquale CAPRIO, Appellant.

Supreme Court, Appellate Division, Second Department.

March 14, 1966.

Peter J. O'Connor, Breed, Abbott & Morgan, New York City, for appellant.

William Cahn, Mineola, Richard D. Longworth, of counsel, for respondent.

Before UGHETTA, Acting P.J., and CHRIST, BRENNAN, HILL and HOPKINS, JJ.

HOPKINS, Justice.

The defendant was indicted and convicted of the crimes of burglary in the third degree and grand larceny in the second degree. Proof of his guilt depends in large part on the testimony and a pretrial written statement of Peter Thomashefsky, an alleged accomplice. The defendant challenges that testimony and, in particular, the admissibility of that statement. We deal with those questions here.

On a Sunday evening, in June 1962, Thomashefsky rang the door bell of an Elmont (Nassau County) residence. Receiving no answer, he entered the back yard, broke a cellar window, crawled into the basement and ascended to a bedroom where, after rifling bureau drawers, he stole jewelry and money. An armed neighbor, who had observed Thomashefsky's entry, shot at and captured him as he fled the residence. Upon his arrest by the hastily summoned police, Thomashefsky's pockets, at the scene of the burglary, disgorged the jewelry and money and there he readily admitted his crimes, described his capture and claimed that he was alone.

Of Thomashefsky's guilt there is no dispute among us for, though indicted with the defendant, Thomashefsky had pleaded guilty and had received a suspended sentence prior to the time of defendant's trial. Whether defendant was proved to have been Thomashefsky's accomplice is the issue upon which we differ.

Prior to Thomashefsky's crimes, the defendant and he had been seen in a car parked by the defendant around the corner from the burgled residence. Thereafter, the defendant raised the car's hood and Thomashefsky walked down the block. Within ten minutes Thomashefsky burglarized the residence and was captured. At the time of Thomashefsky's arrest the defendant was sitting in the car, its hood down. Upon inquiry by a police officer, the defendant denied that he had been accompanied by anyone and claimed that he awaited no one. He was taken to a police station where, in the presence of Detective Kelly, he and Thomashefsky confronted one another. Thomashefsky denied that he knew the defendant, and defendant repeatedly denied that he knew Thomashefsky, or had ever seen him, or had been with him in the defendant's car prior to the burglary.

On the morning of the following day, Thomashefsky signed a typed confession, after Detective Kelly, who had made no promises to Thomashefsky, had read it to him, and after Thomashefsky himself had read it. In his confession Thomashefsky recited that, on the previous day, he had met the defendant whom he had known for about five or six years; that Thomashefsky had asked the defendant if he wanted to drive to a beach; and that, while driving in Nassau County, the car had overheated, whereupon defendant parked. Thomashefsky's confession further stated that:

'While we were sitting in the car I said Jack (the defendant) I am going to see if I can get some money. I told him to wait for me that I was going to break into a house. Jack said, 'O.K., I'll wait for you.' Jack lifted the hood of the car and he was standing by the car when I walked away.'

At his trial, proof of the defendant's guilt as Thomashefsky's accomplice turned upon the admissibility of Thomashefsky's confession as past recollection recorded, as affected by the fact that Thomashefsky, produced as a People's witness, testified that beyond telling the defendant that he would soon return he was unable to recall what he had said to the defendant when he walked from the defendant's car. Thomashefsky was able to describe his commission of the burglary and larceny, his capture and the defendant's and his own false denials that they knew one another. However, with respect to the defendant's role as his accomplice, Thomashefsky's memory yielded nothing. He testified that he had met the defendant in the early afternoon of Sunday, June 17th, but added that he, Thomashefsky, had been drinking heavily. The defendant, who was in his car, had asked Thomashefsky for a couple of dollars. Thomashefsky said that if the defendant would take him for a drive he would get money. They drove to a bar where Thomashefsky had some drinks. Again Thomashefsky invited the defendant to go for a ride so that Thomashefsky could get money. They drove about, stopped at another bar and then drove to Elmont where, because of mechanical difficulty, the defendant parked his car. Thomashefsky told the defendant to wait for him, that he would return shortly, and walked from the car. At this point in Thomashefsky's testimony the People, aware of the contents of Thomashefsky's confession, sought to elicit from him his communication to the defendant of his intention to commit a burglary and the defendant's agreement to await Thomashefsky's return. Instead, Thomashefsky testified:

'Q. What else, if anything, did you tell him when you parked the car and you told him to wait for you, what if anything else did you tell him?

A. Well, I'll be honest with you, when he parked the car I was looking for another bar but instead I went around the corner, kicked in a window which I admitted to the detectives and broke into the woman's place.

Q. All right. Now, before you did that, did you say anything else to Caprio other than 'Wait for me'?

A. That I don't know, Mr. District Attorney; believe me, I don't know.

Q. Well, let me ask you then, did you sign a statement for Detective Kelly?

A. Yes, I did. I have read the statement and what I say I believe it to be true.'

Thomashefsky's confession was given to him for the purpose of refreshing his recollection, but he still could not recall having said anything else to the defendant when he left the car. Swearing nevertheless that the contents of his confession were true, he claimed that his intoxication was an explanation for his lapse of memory. He added, however, that he had been unable to tell the police why he had burgled the house and he claimed that he still did not know why he had done it. Notwithstanding his assertions of intoxication at the time of the commission of the crimes and lack of recollection at the time of trial, Thomashefsky repeatedly swore that when he signed his confession he believed its contents to have been true. Indeed, Thomashefsky testified that his confession was 'absolutely true.'

The defendant drew from Thomashefsky that he had been convicted about fifteen times, though the nature of the crimes was not shown. The defendant elicited from him that he had pleaded guilty to the indictment and had received a suspended sentence. The defendant openly suggested to him that, if Thomashefsky was intoxicated at the time of the crimes, 'there is no way that you can say that this statement is the truth, is there?' Thomashefsky thereupon, for the first and only time during the trial, agreed that he did not think that he could swear that the statements contained in his confession were true. The court then put the following questions to Thomashefsky:

'The Court: Now, wait a minute. Let me ask him some more questions. Mr. Witness, Did you understand me when I asked you clearly whether the statements embodied in (the confession) were correct? Were they correct?

The Witness: Yes, they were correct.

The Court: Were they true?

The Witness: Yes, they were true.

The Court: Did you sign it?

The Witness: Yes, I did.'

Thomashefsky's confession was then received as past recollection recorded and was read to the jury as part of Thomashefsky's testimony on behalf of the People.

The defendant makes two arguments for reversal. First, he claims that Thomashefsky's testimony was not corroborated (Code Crim.Proc., § 399). He says that his false denials are consistent with innocence as well as with guilt, because it may be inferred that he probably knew of Thomashefsky's criminal record and had heard the gun shots of the armed neighbor who captured Thomashefsky. Assuming that the defendant's probabilities were facts from which an inference consistent with innocence might be drawn, nevertheless there is no requirement that corroborative evidence must be consistent with guilt (People v. Ogle, 104 N.Y. 511, 515, 11 N.E. 53; People v. Bloodgood, 251 App.Div. 593, 298 N.Y.S. 91; People v. McPorland, 191 App.Div. 795, 182 N.Y.S. 117; People v. Sweeney, 161 App.Div. 221, 146 N.Y.S. 637, affd. 213 N.Y. 37, 106 N.E. 913; People v. Freeman, 160 App.Div. 640, 145 N.Y.S. 1061, affd. 213 N.Y. 688, 107 N.E. 1083; People v. Everhardt, 42 Hun 659, affd. 104 N.Y. 591, 11 N.E. 62). Nor, clearly, is this a case of wholly circumstantial proof, for Thomashefsky's confession constitutes direct testimony that he told the defendant of his criminal purpose and that defendant agreed to await him in his car and drive him from the scene of the crime (cf. People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S.2d 551, 138 N.E.2d 794; People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785; People v. Woltering, 275 N.Y. 51, 9 N.E.2d 774). Insofar as the defendant's false statements to police officers concerning his knowledge of Thomashefsky constitute evidence of a consciousness of guilt, they were admissible to corroborate Thomashefsky's testimony (see People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752, 754; People v. Ruberto, 10 N.Y.2d 428, 224 N.Y.S.2d 1, 179 N.E.2d 848; People v. Leyra, 1 N.Y.2d 199, 208, 151 N.Y.S.2d 658, 664, 134 N.E.2d 475; People v. Deitsch, 237 N.Y. 300, 303, 142 N.E. 670, 671; People v. Gorski, 236 N.Y. 673, 142 N.E. 330; People v. McGuire, 135 N.Y. 639, 641, 32 N.E. 146, 147). False denials by one found near the scene of a crime that he knows the accused perpetrator, that he accompanied the perpetrator to a point near the scene...