People v. Caruso

• Decision Date: 02 July 1979
• Docket Number: No. 877-76,877-76
• Citation: 417 N.Y.S.2d 986,68 A.D.2d 570
• Parties: The PEOPLE, etc., Respondent, v. Philip CARUSO and Agostino Fioretti, a/k/a Augie, Appellants. (Ind.)
• Court: New York Supreme Court — Appellate Division

Page 986

417 N.Y.S.2d 986

68 A.D.2d 570

The PEOPLE, etc., Respondent, v.Philip CARUSO and Agostino Fioretti, a/k/a AugieAppellants. (Ind. No. 877-76)

Supreme Court, Appellate Division, Second Department.

July 2, 1979.

John R. Lewis, Carle Place, for appellants.

Patrick Henry, Dist. Atty., Riverhead (Vincent A. Malito, Riverhead, of counsel), for respondent.

Before SUOZZI, J. P., and O'CONNOR, RABIN and SHAPIRO, JJ.

O'CONNOR, Justice.

The defendants were convicted, after a jury trial, of criminal usury.The verdicts are supported by the evidence and the judgments should be affirmed.

The guilt of the defendants was established beyond a reasonable doubt.The admission into evidence of certain taped conversations between the complainant and defendant Caruso did not constitute reversible error as to defendant Fioretti.Although these taped statements were inadmissible against Fioretti (seePeople v. Rastelli, 37 N.Y.2d 240, 371 N.Y.S.2d 911, 333 N.E.2d 182), no objection was taken by defense counsel.In addition, Fioretti was mentioned only tangentially in the conversations and the complainant, who testified at trial, was available for cross-examination as as to the same basic evidence reflected in both his testimony and the tapes.

Although the court failed to make an inquiry pursuant to the dictates of People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 as to whether the defendants were aware of potential conflicts that might arise from their joint representation by one attorney and whether they still chose to be so represented, such a failure does not warrant reversal where no prejudice exists (People v. Sullivan, 64 A.D.2d 533, 406 N.Y.S.2d 807;People v. Ragonesi, 63 A.D.2d 741, 405 N.Y.S.2d 290;People v. Ostin, 62 A.D.2d 1004, 403 N.Y.S.2d 296).Defendant Caruso does not demonstrate any prejudice and defendant Fioretti's claims are without merit.Both defendants relied essentially on a defense that the transaction involved was not usurious.Both had the same basic interest in discrediting the complainant and there is nothing to indicate that their other interests or strategies were at all conflicting.It is noted on behalf of Fioretti that the defense attorney failed to seek limiting instructions regarding the use of the taped conversations between Caruso and the complainant, but no hint is given as to how Caruso would have been hurt had such a limiting request been made.Furthermore, as already noted, the complainant was available to Fioretti for cross-examination and the taped conversations added little to his trial testimony as far as Fioretti's role in the usurious loan was concerned.Fioretti complains about a weak summation on his behalf, but no hint is given as to how this arose out of the joint representation.Caruso certainly did not benefit.Both defendants had the same interest in discrediting the complainant and showing that no usurious scheme was involved.Finally, the bald assertion is offered on behalf of Fioretti that prejudice resulted from the fact that he did not testify, despite having a clean record, because the jury would have been prejudiced thereby against Caruso, who did not testify because of his criminal record.Unless the courts are willing to establish a per se rule that joint representation is improper where one of several defendants has a criminal record and the others do not, this claim is also without merit.No indication is given that had Fioretti taken the stand, his testimony would have been damaging to Caruso.Furthermore, counsel could certainly have sought an instruction to the jury that Caruso's failure to testify could not be held against him.Finally, it is pure speculation on the record as to why Fioretti, a strong-arm man in a loan shark operation and certainly subject to a scathing cross-examination, did not testify.Under these circumstances, the judgments should be affirmed.

Two judgments (one as to each defendant) of the Supreme Court, Suffolk County, both rendered June 29, 1977, affirmed, and case remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50(subd. 5).

SHAPIRO, J., concurs insofar as the majority has affirmed the conviction of defendant Caruso, but otherwise dissents and votes to reverse the conviction of defendant Fioretti and order a new trial as to him, with an opinion.

SUOZZI, J. P., and RABIN, J., concur in the opinion of O'CONNOR, J.

SHAPIRO, Justice (concurring in part and dissenting in part).

I vote to affirm as to the defendant Caruso and to reverse and order a new trial as to the defendant Fioretti.

THE ISSUES

1.Was the verdict against the weight of the evidence?

2.Were the tape recordings admitted at trial inadmissible hearsay as to defendant Fioretti, and if so, was their admission reversible error?

3.Did the joint representation at trial of defendants Caruso and Fioretti deprive them of their right to effective assistance of counsel?

THE FACTS

Only two witnesses testified at trial: Gus Vavoukakis, the alleged victim of the usurious transaction, and John Askew, a detective who investigated this case.

Gus Vavoukakis, 48-year-old manager of the Golden Eagle Diner in Huntington Station, Suffolk County, had accumulated heavy gambling debts when, in November, 1974, he discussed his financial situation with Johnny Morgano, a customer at his diner.Morgano introduced Vavoukakis to Phil Caruso, in the presence also of "Augie" Fioretti, that same month in the diner.Caruso agreed to lend Vavoukakis $500, on condition that Vavoukakis repay $800, $100 per week for eight weeks.If Vavoukakis missed a weekly payment, he was to pay $35 interest, which would not reduce the principal for that week.It is clear that the terms of this loan exceeded the rate of 25% Per annum and, therefore, it was criminally usurious (seePenal Law, § 190.40).Two or three weeks later, Vavoukakis made his first $100 payment, to Fioretti.The second $100 payment, also to Fioretti, was made in early 1975.Vavoukakis' testimony as to subsequent payments was confused and frequently self-contradictory.Basically, other than a $100 interest payment he made to Fioretti through an intermediary, and which he failed to mention on direct examination, he made no further payments until late 1975, when Fioretti informed him that because of his delinquency in repaying the debt, he now owed $1,600, to be paid $50 per week, $25 against principal and $25 for interest.Caruso was also pressuring Vavoukakis to pay, so Vavoukakis went to the police.The police fitted Vavoukakis with a tape recorder and gave him $25.When Vavoukakis made the $25 payment to John Morgano in December, 1975, their conversation was recorded.The tape proved inaudible because of background noise.However, three audible tapes were made of Vavoukakis' conversations with Caruso over the telephone on March 10 and March 19, 1976, and at a luncheonette on March 12, 1976.At the luncheonette, Vavoukakis paid Caruso $40.

The other details as to times and amounts of payments are very unclear from Vavoukakis' testimony; however, there were payments made besides those mentioned above.Caruso, Fioretti and Morgano were arrested and charged with conspiracy and criminal usury.The court dismissed the conspiracy count as to Fioretti and the jury acquitted Caruso and Morgano of that charge.However, the jury found all three men guilty on the usury count.Caruso and Fioretti, but not Morgano, now appeal their convictions to this court.

ASUFFICIENCY OF THE EVIDENCE

Both Caruso and Fioretti challenge the sufficiency of the evidence upon which their convictions were based.

Caruso maintains that it is contrary to human experience that a loan shark would wait almost a year and a half for his money and make as few efforts to collect it as were made here.This may be true, but the evidence, if believed by the jury, was sufficient to establish a violation of section 190.40 of the Penal Law.Being an unusually lax loan shark is not a defense to a charge of criminal usury.

The complainant, Vavoukakis, was the only witness to testify to the elements of the offense, and his testimony was seriously confused and self-contradictory.At various points in the trial, he testified that the sum of the payments he had made on the loan was $370, $470, or $425.He admitted that his trial testimony conflicted with his Grand Jury testimony.He testified on direct to violent threats against him by Caruso, but upon being confronted on cross with his own taped conversations, he admitted that no such treats were made (seePeople v. Yanik, 63 A.D.2d 574, 404 N.Y.S.2d 633).Caruso thus urges that his conviction was against the weight of the evidence.The People respond that the evidence of guilt against Caruso was so overwhelming that his argument on this ground requires no further comment.The People are correct.Vavoukakis testified that Caruso laid down the terms of the loan, pressured him to pay it and discussed the loan with him on several occasions.The transcripts of Vavoukakis' taped conversations with Caruso provide further evidence.The jury had the prerogative to believe Vavoukakis' testimony, despite the inconsistencies.Thus, the testimony as to Caruso's guilt is sufficient to sustain his conviction.

The evidence was likewise sufficient to sustain Fioretti's conviction.According to the complainant's testimony, Fioretti was present when the terms of the loan were initially discussed.The first two $100 payments were made to him.An interest payment was also made to him.It was Fioretti who explained to Vavoukakis the new repayment rates a year later.Tested by the rule that in reviewing a conviction in a criminal case, we must view the evidence in the light most favorable to the prosecution(People v. Montanez, 41 N.Y.2d 53, 390 N.Y.S.2d 861, 359 N.E.2d 371;People v. Leach, 57 A.D.2d 332, 394 N.Y.S.2d 723), that evidence was sufficient to warrant the jury in...