People v. Coniglio
| Decision Date | 04 November 1974 |
| Citation | 79 Misc.2d 808,361 N.Y.S.2d 524 |
| Parties | The PEOPLE of the State of New York v. Benedito CONIGLIO, Defendant. |
| Court | New York Supreme Court |
Nicholas Ferraro, Kew Gardens, for the People by George Golfinopoulos, Kew Gardens, of counsel.
Lyon & Erlbaum, Kew Gardens, for defendant, by William Erlbaum, Kew Gardens, of counsel.
The indictment charges the defendant with two counts of murder and one count of attempted murder.
A hearing on motions to suppress was held before me to determine:
1. Admissibility of statements made by the deceased, Mary Cimino;
2. Admissibility of statements made by the defendant to the police;
3. Admissibility of a gun and bullets.
At the outset, this Court must point out that the initial relief sought by defendant is highly unique. A dying declaration, by its very nature, may not be the subject matter of a Huntley type suppression hearing. Criminal Procedure Law (§ 710.20, subd. 3) clearly limits the subject matter of such a hearing to statements made by the defendant. Thus, when a motion is made to 'suppress' a dying declaration, the procedural relief actually sought is a pretrial evidentiary ruling on the admissibility of this statement. A suppression hearing confines itself solely to the issue of whether or not constitutional rights were violated by the improper acquisition of evidence. If the Court finds such a violation, the only relief authorized is to 'order that the evidence in question be excluded in the criminal action pending against the defendant'. (CPL, § 710.70, subd. 1). Hearings of this nature do not touch upon the trial relevance of evidence, nor do they deal with admissibility; their function is simply to bar or admit on constitutional grounds. Hence, the defendant's request for a premature ruling on competence is not part of a suppression hearing and is quite unusual.
A search of the cases reveals no precise authority for this particular form of advance ruling. While People v. Sandoval, 34 N.Y.2d 371, 314 N.Y.S.2d 413, does permit a court to make a prospective ruling in advance of trial, this case limits itself only to cross-examination and does not appear to authorize the relief now sought. However, keeping in mind the fact that the admissibility of a dying declaration is a preliminary question that must be determined prior to jury submission, (People v. Smith, 104 N.Y. 491, 10 N.E. 873; People v. Ludkowitz, 266 N.Y. 233, 194 N.E. 688) and that both sides have sought this determination in advance, the court will exercise its discretion by ruling on this question in the interests of justice and speedy trial.
This first application then seeks to determine in advance the trial admissibility of a declaration made by one Mary Cimino, a victim of the murder charged in the indictment.
Sergeant John McManus, a witness for the prosecution, testified that he came to the premises located at 147--03 Tenth Avenue, Whitestone, New York, a few minutes after Patrolmen O'Hagan and Smith responded to that location on December 13, 1973. He observed Mrs. Cimino on the floor in a den-type room, lying face up and bleeding from her upper right shoulder. He asked her what happened and she replied, . He asked her, 'Benny who?' and she said, 'Benny Coniglio'. He asked her, 'Where is Benny?' and she replied 'Around the corner on Eleventh Avenue' (SM 9, 10, 11). Testimony of Dr. Rho, a deputy chief medical examiner, was to the effect that he did not examine Mrs. Cimino while she was still alive. He was present at her autopsy. He stated that the autopsy showed that the cause of death was bullet wounds of chest and head, including the lung. He further stated that in his opinion and with a reasonable degree of medical certainty, Mrs. Cimino was in critical condition after she received three bullet wounds (SM 165), almost dying (SM 166).
The court is called upon to determine whether the foregoing statements made by Mrs. Cimino fall within the dying declaration rule.
A dying declaration cannot be received in evidence unless it appears:
1. That the declarant was In extremis;
2. That the declarant was under a sense of impending death, without any hope of recovery;
3. The declarant, if living, would be competent as a witness.
Counsel for the defendant relies on numerous cases as grounds for its rejection, one of which is People v. Ricken (242 App.Div. 106, 273 N.Y.S. 470). In that case the declarant's statement was 'I don't think I will live.' Such a statement does not express a hopeless expectation that death was approaching. The court, referring to the statement, at page 109, 273 N.Y.S. at page 473, stated: 'It does not reveal the despair of recovery which must be foundation for the reception of the declarations.'
In the instant case, the declarant stated Such statement, the court finds, differs greatly from the statement made by the declarant in the Ricken case. In the case at bar, the declarant expressed no hope for recovery. Her oral statement 'I'm going to die too' clearly shows that the declarant was fully aware of her impending death and lost all hope of recovery. It is not speculative or conjectural, but positive, definite, unequivocal and precise. The statement was made at a time when the declarant had no opportunity to reflect or contrive. The fact that an operation was performed in an effort to save her life does not negate the effect of her declaration. The fact that the victim died some hours after making the statement does not change its character or effect as a dying declaration. (People v. Chase, 79 Hun 296, affd. 143 N.Y. 669, 39 N.E. 21.) The court in that case stated: 'If it appears that the declarant is conscious of impending death, and without expectation or hope of recovery, even if the final event is postponed longer than had been anticipated, such postponement in no manner affects the condition of mind of the declarant at the time of the making of the declaration; nor is the situation of the declarant less solemn and awful, nor is every motive to falsify less completely silent.'
From the testimony before me, I find that the oral statement made by the declarant, Mary Cimino, is therefore admissible as a dying declaration. I find that the declarant was In extremis when the declaration was made; that she was under a sense of impending death, without any hope of recovery and, if living, she would be competent to testify as a witness. However, only those statements contained in said declaration which bear upon the declarant's death are admissible. (Richardson on Evidence, § 312 (10th Ed.).)
Accordingly, the motion to prohibit the use of said declaration at time of
trial is denied. THE SUPPRESSION HEARINGS RELATIVE TO THE
Police Officer Mascolo testified that on December 13, 1973 he was working a tour of duty as the recorder in a patrol car and that at about 7:25 P.M. on that day a call was received from Central concerning an accident at Crosby and Westchester Avenue, Bronx; that a motorist who was in the middle of the street advised him of an accident involving a motorist who drove away who was driving a 1968 Chevy, gold color; that he then gave a description of that car over the radio and that he received back information that a car fitting the description was stopped about four blocks away at Tremont Avenue and Tan Place; that he went to said place; that the defendant Coniglio was seen in the driver's seat in the car; the motor was running; water was leaking through the radiator; that he placed the defendant under arrest for leaving the scene of an accident and driving while intoxicated, since he (the officer) smelled alcohol and observed the defendant in an apparently intoxicated condition, unsteady, and eyes bloodshot. The defendant had apparently urinated on himself; that he asked defendant for the auto registration or identification and defendant replied it was in the glove compartment of the car and to get it from the glove compartment (SM 106). He further testified that as he reached across the driver's seat to open the glove compartment he saw a revolver on the floor underneath the glove compartment. The gun was loaded. It had three live rounds and two spent shells (SM 106). Officer Mascolo also testified that at the 45th Precinct, to which the defendant was taken, he apprised the defendant of his...
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...be held as was done here (see People v. Marks, 6 N.Y.2d 67, 75-76, 188 N.Y.S.2d 465, 470, 471, 160 N.E.2d 26, 30; People v. Coniglio, 79 Misc.2d 808, 361 N.Y.S.2d 524; and cf. People v. Smith, 104 N.Y. 491, 10 N.E. 873), but a foundation for reception of the evidence must be established bef......
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...on cross-examination issues. Additional cases dealing with pre-trial evidentiary rulings in the criminal area are People v. Coniglio (79 Misc.2d 808, 361 N.Y.S.2d 524) and People v. Little, 83 Misc.2d 321, 371 N.Y.S.2d 726. The Court in these cases ruled on the validity of dying declaration......
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...dying declaration exception to the hearsay rule (see, generally, People v. Nieves, 108 A.D.2d 165, 488 N.Y.S.2d 654; People v. Coniglio, 79 Misc.2d 808, 361 N.Y.S.2d 524; cf. People v. Acomb, 87 A.D.2d 1, 450 N.Y.S.2d 632, appeal dismissed 56 N.Y.2d 1034, 453 N.Y.S.2d 1030, 439 N.E.2d 404).......
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