People v. Donovan

• Decision Date: 01 July 1976
• Citation: 53 A.D.2d 27,385 N.Y.S.2d 385
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert Lawrence DONOVAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 385

385 N.Y.S.2d 385

53 A.D.2d 27

The PEOPLE of the State of New York, Respondent, v. Robert Lawrence DONOVAN, Appellant.

Supreme Court, Appellate Division, Third Department.

July 1, 1976.

William F. Wilcox, Oneida, for appellant.

William F. O'Brien, III, Dist. Atty., Wampsville, for respondent.

Before GREENBLOTT, J.P., and SWEENEY, MAHONEY, HERLIHY and REYNOLDS, JJ.

OPINION FOR AFFIRMANCE

MAHONEY, Justice.

Four males, including defendant, and one female left New York City in the early morning hours of October 24, 1975 in two cars with the common intent of robbing Leonard's Jewelry Store in Syracuse, New York. At about 9:30 A.M. of that morning they stopped at a New York State Thruway parking lot and there Frank DiChiaro distributed revolvers to the other four and retained one for himself. At about 10:00 A.M. both cars arrived at a parking lot across the street from the jewelry store. DiChiaro, John Ruzas and the defendant, all armed, walked across the street to their target, leaving Carla Bruno and Michael Blake behind with the cars. Defendant Donovan did not enter the jewelry store. He contends he changed his mind, returned to the parking lot, surrendered his gun to Carla Bruno and disclaimed any intention to participate in the robbery. About one half hour later DiChiaro and Ruzas returned from the store with the fruits of the robbery, and they left the area in the two cars with the defendant Donovan driving a white Cadillac with Ruzas lying on the back seat to give the impression that Donovan was alone. Forty-five minutes later the Cadillac was 37.75 miles from the robbery site travelling toward New York City on the Thruway when Trooper Dillon stopped the Conovan car. After ascertaining that Donovan's license was a forgery, Trooper Dillon had Donovan get out of the car. While frisking Donovan, the Trooper noticed Ruzas in the back seat. In the course of demanding identification papers from Ruzas he removed a green coat from the rear seat. Donovan grabbed the coat and while he and Trooper Dillon were struggling, Ruzas got out of the opposite rear door and fired a shot from a .25 caliber Baretta pistol across the trunk of the car and into the officer's heart. Trooper Dillon died on the spot. Donovan and Ruzas sped away with Donovan driving. One mile away the car crashed through the exit gate and entered the Village of Canastota where they abandoned the Cadillac, commandeered a 1969 Chevrolet at gunpoint from a housewife, drove to the City of Oneida where they abandoned the Chevrolet, and took a taxicab only to be stopped and arrested at a roadblock. The .25 caliber Baretta pistol, loaded with live rounds, was still in the possession of Ruzas.

On this appeal defendant Donovan contends (a) that the verdict of guilty of murder in the second degree (Penal Law § 125.25) was against the weight of the evidence, (b) that section 125.25 of the Penal Law is unconstitutional, (c) that it was error to deny his motion for a separate trial, (d) that the Jury panel should have been disqualified, (e) that it was error not to sequester the jury because of alleged extensive adverse publicity, (f) that he was incompetent to stand trial because of excessive use of tranquilizing drugs while incarcerated and (g) the verdicts of guilty of robbery, first degree, and criminal possession of a dangerous weapon, second degree, were against the weight of the evidence.

Contentions (b)(c)(d)(e)(f) and (g) can be disposed of readily and sequentially.

The affirmative defense provisions of section 125.25 (subd. 3, pars. (a--d)) of the Penal Law are not unconstitutional despite the requirement that the defendant has the burden of proof by a preponderance of the evidence with respect to an affirmative defense premised on the fact that he was unarmed and did not commit or in any way solicit or aid in the commission of the murder. The Court of Appeals in People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 347 N.E.2d 898 (Apr. 1, 1976), with full awareness of the holding in Mullaney v. Wilbur (421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508) has concluded that so long as the prosecution must prove, beyond a reasonable doubt, the requisite elements for a conviction of the crime charged, it is not a violation of due process to permit the defendant to establish the existence of mitigating circumstances and to assign the burden of such proof, by a preponderance of the evidence, to the defendant (cf. People v. Bornholdt, 33 N.Y.2d 75, 83, 350 N.Y.S.2d 369, 375, 305 N.E.2d 461, 465). Although the Court of Appeals in Patterson directly dealt with only the affirmative defense of 'extreme emotional disturbance' (Penal Law § 125.25, subd. 1, par. (a)) it, by implication, also supports the four-part affirmative defense of section 125.25 (subd. 3, pars. (a--d)).

The trial court was correct in denying defendant's pretrial motion for a severance (CPL 200.40, subd. 1). The test to be applied when one of juintly indicted defendants moves for a severance is whether a separate trial will 'impede or assist the proper administration of justice * * * and (to) secure to the accused the right of a fair trial'. (People v. LaBelle, 18 N.Y.2d 405, 411, 276 N.Y.S.2d 105, 109, 222 N.E.2d 727, 730, People v. Snyder, 246 N.Y. 491, 497, 159 N.E. 408, 410.) There is nothing in this record which is persuasive that a joint trial would 'impede' the administration of justice or deny to defendant a fair trial. A motion for a separate trial is directed to the sound discretion of the trial court, subject to review only for an abuse thereof (People v. Owens, 22 N.Y.2d 93, 291 N.Y.S.2d 313, 238 N.E.2d 715, People v. Bornholdt, supra). We find none herein.

Next, the issue of juror exclusion from the panel because of affirmative response to the inquiry as to whether said jurors held views concerning the death penalty as would prevent a finding of guilty if the crime charged was punishable by death (Judiciary Law, § 663), is moot. The defendant was sentenced to no less than 20 years to life on the murder in the second degree conviction (People v. DiPiazza, 24 N.Y.2d 342, 300 N.Y.S.2d 545, 245 N.E.2d N.Y.2d 342, 300 N.Y.S.2d 545, 248 N.E.2d respect to the manner in which the jury panel was chosen are meritless and have been extensively dealt with by the trial court in a decision dated June 10, 1975.

Similarly, there is no merit to the contention that extensive adverse publicity operated to deny defendant a fair trial and further, that such publicity should have prompted the court to grant defendant's motion to sequester the jury. The question of adverse publicity in this case was before this court, prior to trial, in connection with a motion for a change of venue. (CPL 230.20, subd. (2)) The motion was denied on April 24, 1975. A review of the record shows extensive Voir dire of prospective jurors with respect to their knowledge of the case and their ability to fairly and impartially judge the case on its merits. Further, the record is replete with judicial admonitions to the jury and there is no evidence to show that such instructions were not obeyed. A...