People v. Davilla

• Decision Date: 28 April 1998
• Citation: 249 A.D.2d 179,672 N.Y.S.2d 107
• Parties: , 1998 N.Y. Slip Op. 3785 The PEOPLE of the State of New York, Respondent, v. Paul DAVILLA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 107

672 N.Y.S.2d 107

249 A.D.2d 179, 1998 N.Y. Slip Op. 3785

The PEOPLE of the State of New York, Respondent, v. Paul DAVILLA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 28, 1998.

Darryll A. Buford, for respondent.

Rebecca Stead, for defendant-appellant.

Before MILONAS, J.P., and ELLERIN, NARDELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County (William Wallace, III, J.), rendered July 8, 1993, convicting defendant, after trial by jury, of murder in the second degree, four counts of attempted murder in the second degree, criminal possession of a weapon in the second degree and assault in the second degree and sentencing him to concurrent terms of 25 years to life, four terms of 12 1/2 to 25 years, 5 to 15 years and 2 1/3 to 7 years, respectively, unanimously affirmed.

Defendant's guilt of the various counts was proved beyond a reasonable doubt by overwhelming evidence. Defendant Hugo Nunez and others set upon Edward Concepcion, Wilfredo Concepcion, Nelson Cruz, Alvaro Cabrera and Angel Cabrera (also known as Alvaro Colon) as they drove two young women, "Tabitha" and Luz Rivera, home. When the two women stepped out of two separate cars the group drove up in, defendant and his accomplices came forward and began firing at the occupants of the cars. Defendant walked directly to the passenger side window of the car in which Edward Concepcion was seated and fired two shots at him, one of which struck him in the head, killing him.

Besides the eyewitness testimony, which constituted overwhelming evidence, defendant evidenced consciousness of guilt by threatening the witnesses against him. These threats "backfired" against defendant since two witnesses, Alvaro Cabrera and Nelson Cruz, testified that they were cooperating only because of the threats. It was known by all parties prior to trial that Cabrera would testify that he had been threatened in jail on behalf of defendant. Defendant sought an in limine ruling to preclude this testimony on the basis that the jury would learn that defendant was in jail at the time and that defendant was a drug dealer. The prosecutor informed the court that the witness had been instructed not to volunteer that the defendant was a drug dealer. The court told defendant to object at the proper time during the trial if the prosecutor went too far. At trial, during his direct examination, Alvaro Cabrera asked whether he could ask the court a question and the court told him no. The court then asked the attorneys to approach for an off-the-record sidebar. Following this sidebar, the court apparently turned to Cabrera in the witness box and spoke briefly to him off the record. The defense counsel noted that such a conversation had taken place and noted it was the second time such an exchange had taken place. When the prosecutor resumed the direct examination, her first question was: "Do you have a question for me?" The witness responded yes and then went on to make a statement that he had not testified before the Grand Jury and would not be testifying at the trial if the defendant had not threatened him. Defense counsel moved for a mistrial without specifying the grounds. The motion was denied. Defendant now asserts that he was denied his right to be present at the off-the-record colloquy between the court and the witness.

While the defendant cites cases for the proposition that such an exchange in his absence warrants reversal (People v. Turaine, 78 N.Y.2d 871, 573 N.Y.S.2d 64, 577 N.E.2d 55; People v. Ortega, 78 N.Y.2d 1101, 578 N.Y.S.2d 123, 585 N.E.2d...