People v. DiPippo
| Decision Date | 29 March 2016 |
| Docket Number | No. 11,11 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony DiPIPPO, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Brafman & Associates, P.C., New York City (Mark M. Baker, Benjamin Brafman and Jacob Kaplan of counsel), for appellant.
Adam B. Levy, District Attorney, Carmel (David M. Bishop and Heather M. Abissi of counsel), for respondent.
STEIN
, J.
On this appeal, defendant Anthony DiPippo argues that the trial court abused its discretion by precluding him from introducing evidence of third-party culpability during his retrial for felony murder and rape in the first degree. We conclude that, under the circumstances of this case, defendant should have been permitted to present evidence of third-party culpability to the jury.
In 1994, a 12–year–old girl (hereinafter the victim) went missing in Putnam County. Tragically, her remains were found, over one year later, in a wooded area off a dirt road known to some locals as “Marijuana Road.” Defendant and one of his friends, Andrew Krivak, were arrested in 1996 and charged with raping and murdering the victim on or about October 3, 1994. Following a jury trial, defendant was convicted of murder in the second degree and rape in the first degree, and he unsuccessfully exhausted his direct appeals (265 A.D.2d 340, 340, 696 N.Y.S.2d 690 [2d Dept.1999]
, lv. denied 94 N.Y.2d 918, 708 N.Y.S.2d 357, 729 N.E.2d 1156 [2000] ).
On one of defendant's subsequent CPL 440.10
motions, the Appellate Division vacated the judgment of conviction and sentence and remitted the matter for a new trial on the ground that defendant had been denied the effective assistance of trial counsel because his attorney had operated under a conflict of interest (82 A.D.3d 786, 787, 918 N.Y.S.2d 136 [2d Dept.2011], lv. denied 17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162 [2011] ). More specifically, counsel had previously represented Howard Gombert, a possible suspect in the victim's rape and murder, on an earlier rape charge (see
id. at 787–788, 918 N.Y.S.2d 136 ). The Appellate Division concluded that counsel's failure to disclose his prior representation of Gombert to defendant or the trial court, combined with counsel's failure to “conduct even a minimal investigation” into Gombert's potential involvement in the crimes for which defendant stood accused, demonstrated that the conflict operated on counsel's representation of defendant (id. at 791, 918 N.Y.S.2d 136 ).
Upon his retrial, defendant sought to admit evidence suggesting that Gombert was the perpetrator of the crimes with which defendant was charged. Defendant made an offer of proof to the court detailing the evidence that he claimed supported his third-party culpability defense. Foremost amongst this evidence was the affidavit of Joseph Santoro, who was incarcerated with Gombert in Connecticut1 and claimed that Gombert had made incriminating admissions in April 2011 with respect to his involvement in the victim's death.
According to Santoro's affidavit, Gombert told him that Putnam County authorities were “trying to get him for the killing of two girls” in the Putnam County area. Gombert named the victim as one of the girls, asserting that, in any event, “they already convicted some other suckers” in connection with her death. Santoro asked Gombert, “[s]o the other guys didn't do it?” and, according to Santoro, Gombert laughed and responded that Thereafter, Gombert made a derogatory sexual comment about the victim, prompting Santoro to ask whether Gombert had sexual relations with her. Gombert explained to Santoro that he had met the victim at his former girlfriend's house, and was attracted to her. Gombert claimed that the victim “flirted with him a lot” and offered to babysit for Gombert's child, but Gombert declined the babysitting offer because he was with the child's mother at the time. According to Santoro, Gombert then stated that “[t]he only way he could get [the victim] into his car was to tell her he wanted her to babysit for his daughter” and that, after he did so, he had sex with the victim in a red car with a black hood. Santoro elicited from Gombert that this occurred at “the time [the victim] disappeared.” When Santoro told Gombert that he would be better off keeping quiet, Gombert told him that “ ” Santoro also described sexual comments made by Gombert about the victim on a separate occasion, at which point Gombert told Santoro that the victim did not want to have sex with him, but he “had to persuade her.” In addition, Gombert made statements regarding a second missing girl, identified by first name, who had indeed gone missing, and whose body he claimed would never be found by the police. Santoro interpreted Gombert's statements to him as boasts that Gombert had killed both girls, and that defendant and Krivak were wrongly prosecuted for killing the victim.
Defendant's proffer supplemented Santoro's affidavit with the statements of various witnesses establishing that Gombert knew the victim, having met her at his former girlfriend's house, where the victim often spent time with the former girlfriend and her children. Defendant also submitted statements establishing that the victim had discussed babysitting Gombert's child with Gombert and his then-girlfriend. Gombert's then-girlfriend and another witness also confirmed that Gombert had regular access to and routinely drove the girlfriend's car, which was red with a black hood and had Connecticut license plates. The girlfriend further informed police that, after they saw a missing person poster for the victim, Gombert told her that he had given the victim a ride in her car the previous week.
In addition, defendant proffered notes from a police officer indicating that a witness, Anita Albano, had seen the victim, on the last day that she was seen alive, getting into a compact red vehicle with Connecticut license plates, driven by a young man with whom the victim appeared to be familiar. When Albano viewed a photograph array, she stated that the person in picture number two, if anybody, looked like the driver; photograph number two depicted Gombert. Finally, defendant tendered what he termed “reverse Molineux ” (People v. Molineux, 168 N.Y. 264, 273, 61 N.E. 286 [1901]
) evidence, namely, allegations that Gombert had raped and sexually assaulted other girls and women in what he claimed was a similar manner to that which was alleged with regard to the victim.
Initially, County Court denied defendant's motion to admit the third-party culpability evidence because it found that Albano had not identified Gombert as the driver of the vehicle she saw the victim enter on the day she disappeared, but the court later reopened the matter to hear testimony from Albano regarding her observations. At that hearing, Albano testified that she had not identified Gombert, who was older than the person she saw, as the driver; rather, she claimed to have told the police officers that the driver was not depicted in the photographs but that Gombert, if anyone, bore some resemblance to the driver. Albano further testified that, a few days before the hearing, she was shown a picture of the red vehicle belonging to Gombert's former girlfriend, and that it was not the vehicle that she had seen on the day in question. Two police officers corroborated aspects of this testimony.
In light of Albano's testimony and the absence of any direct evidence placing Gombert with the victim on the day she was last seen alive, County Court held that defendant had failed to present sufficient evidence pointing to Gombert as the perpetrator, and that Gombert's alleged statements to Santoro were inadmissible hearsay. County Court thereafter denied defend-ant's request to reconsider its ruling.
At trial, the People presented evidence generally establishing that the victim was last seen alive on October 3, 1994. A few witnesses testified that they saw the victim at a gas station that night, in the company of, among others, defendant and Krivak. According to the prosecution's main witness, the victim, defendant, Krivak, the witness, and two other male friends were driving home from the gas station in Krivak's van when Krivak pulled off to the side of “Marijuana Road.” The witness testified that two of the men were consuming drugs in the front seat, and that she and the others were drinking alcohol and smoking marihuana in the back when Krivak began grabbing at the victim, who resisted. According to the witness, Krivak threw the victim to the floor of the van, pulled off her clothing, tied her hands with rope, shoved her underwear in her mouth, tied her bra around her face, and raped her. A few minutes later, the witness asserted, defendant also raped the victim who, by the end, appeared “lifeless.” The witness testified that Krivak and defendant wrapped the victim in her clothes, picked her up, and left her somewhere outside the van.
The witness admitted, however, that she did not disclose any of this information to the police the first two times she spoke to them, and it was not until two years after the alleged murder, when she received warnings from the police that she could be charged, that she implicated defendant and Krivak. Further, the witness's credibility was impeached by questions concerning her drug use that night and, more generally, around the time of the victim's disappearance, as well as by her admission that she continued to associate with defendant after the alleged crimes were committed.
The victim's remains were found with rope tied around her wrists—which were behind her back—and looped around her neck and down to her ankle in a “hogtied” position. The victim did not appear to have been wearing clothing, and the deteriorated...
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