People v. Castro-Restrepo, CASTRO-RESTREP

• Decision Date: 15 January 1991
• Docket Number: CASTRO-RESTREP,D
• Citation: 169 A.D.2d 454,565 N.Y.S.2d 461
• Parties: The PEOPLE of the State of New York, Respondent, v. Albertoefendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 461

565 N.Y.S.2d 461

169 A.D.2d 454

The PEOPLE of the State of New York, Respondent, v. Alberto CASTRO-RESTREPO, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 15, 1991.

Before MURPHY, P.J., and ROSS, MILONAS, KASSAL and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on November 17, 1988, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1], and sentencing him to an indeterminate term of 17 1/2 years to life, unanimously reversed on the law and as a matter of discretion in the interest of justice, and the matter remanded for a new trial in connection with which defendant is to be afforded an opportunity to renew his suppression motion.

Defendant-appellant Alberto Castro-Restrepo has been convicted of criminal possession of a controlled substance in the first degree (Penal Law § 220.21[1]. The conviction arises out of events which occurred on March 24, 1988. On that date, the defendant was observed by State Investigator Baum exiting 252 East 78th Street carrying three apparently heavy bags. He walked with the bags to a maroon Chevrolet Caprice parked a short distance away. The driver of the Caprice, co-defendant Herman Gonzalez, had opened the car's trunk and waited at its rear. Either as Castro-Restrepo put the bags in the trunk or immediately afterward, Baum placed him and Gonzalez under arrest. Baum then performed a warrantless search of the bags. He found what was subsequently determined to be 25 kilograms of cocaine.

Castro-Restrepo and Gonzalez were thereafter indicted for criminal possession of a controlled substance in the first degree. Joined in the same indictment were counts charging co-defendant Gonzalez alone with both criminal possession and criminal sale of a controlled substance in the first degree. These latter counts, which the People now concede were misjoined (see CPL § 200.40[1], concerned matters which occurred on March 23, 1988, one day before the events leading to Castro-Restrepo's arrest.

The proof at trial indicated that on March 23rd State investigators observed Gonzalez arrive at 86th Street and First Avenue in Manhattan driving a maroon Chevrolet Caprice with a license plate bearing the number LXG935. Gonzalez, who drove the car, together with two other Hispanic men, got out of the car and walked to a nearby pay phone. One of the men who had been a passenger in the car and, as the jury would learn, was himself subsequently arrested for possession of a large quantity of cocaine, then used the phone. From time to time he removed the receiver from his ear and spoke to his companions. Gonzalez soon left the vicinity of the pay phone and moved the maroon Caprice from where it had been parked. A short time later he returned to the area, this time parking the Caprice on First Avenue about a quarter block north of 86th Street. When the men who had been congregated near the pay phone saw Gonzalez, one of them, the man who had spoken on the phone, walked over to the Caprice and, once there, received from Gonzalez a green duffel bag which Gonzalez had removed from the car's trunk. Gonzalez then drove away. The man who had received the duffel bag drove away in a different car. He was subsequently stopped and arrested. The green duffel bag seized as a result of the arrest was found to contain about 24 kilograms of cocaine.

Respecting Gonzalez's involvement in the offenses said to have occurred on the following day, March 24th, Investigator Baum testified that he observed the maroon Caprice which had been driven by Gonzalez the day before, parked on First Avenue in the vicinity of 75th and 76th Streets. Soon after spotting the car, Baum noticed Gonzalez in the company of other men using a pay phone located on 75th Street. A short time later, Baum observed Gonzalez walk past his, Baum's, car carrying some empty bags and return some minutes later, again walking past Baum's car, this time empty-handed. After a brief interval, Gonzalez passed Baum a third time, on this occasion driving the maroon Caprice. Baum followed the Caprice to 78th Street between Second and Third Avenues. It was at this location that Baum observed the above-described transaction between Gonzalez and Alberto Castro-Restrepo.

Gonzalez testified in his own behalf. He stated, in substance, that he was a gypsy cab driver whose participation in the March 24th transaction had been entirely innocent since he was merely responding to a call for cab service and did not know what was in the bags which were placed in the trunk of his cab. He denied any participation in the transactions of the previous day and stated that the testimony of the investigators implicating him in those transactions was mistaken. In the course of his testimony concerning the March 24th transaction, he confirmed Baum's testimony that it had been appellant who carried the bags from the door of 252 East 78th Street to the maroon Caprice.

Upon learning that Gonzalez would testify, and that his testimony would confirm that appellant had, indeed, carried the bags of cocaine to the Caprice, appellant's counsel moved to sever Castro-Restrepo's case from that of his co-defendant. He urged that severance was necessary since Gonzalez's testimony "could be antagonistic to the position and posture of the defendant Castro". The motion was denied, and among the issues presently raised by appellant is the propriety of that denial.

In People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34, the Court of Appeals set forth the very limited circumstances under which the antagonistic position of a co-defendant would be considered sufficiently prejudicial to require a court, in the sound exercise of its discretion, to grant a motion pursuant to CPL 200.40(1) for severance: "[S]everence is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer the defendant's guilt" (id. at 184). Clearly, the situation presented by the facts at bar does not come close to meeting this exacting standard, for although Gonzalez's testimony did conflict with appellant's contention that he had not carried the bags, the defense of both defendants, as portrayed to the trial court, was ultimately that neither knew what was in the bags. Certainly, nothing about Gonzalez's defense was irreconcilable with appellant's core claim...