People v. Dorta
| Decision Date | 15 February 1977 |
| Citation | 56 A.D.2d 607,391 N.Y.S.2d 623 |
| Parties | The PEOPLE, etc., Appellant, v. Esther DORTA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Eugene Gold, Dist. Atty., Brooklyn (Jane S. Meyers, Brooklyn, of counsel), for appellant.
Joseph J. Lombardo, Brooklyn, for respondent.
Before HOPKINS, Acting P.J., and LATHAM, RABIN, HAWKINS and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the People from an order of the Supreme Court, Kings County, dated February 27, 1976, which granted defendant's motion, made pursuant to CPL 330.30, to set aside a jury verdict adjudging her guilty of felony murder, and ordered a new trial.
Order reversed, on the law, jury verdict reinstated, and case remanded to Criminal Term for sentence.
We note at the outset that we have considered, Sua sponte, the issue of the People's right to appeal and have concluded that such right exists. This appeal has been taken pursuant to CPL 450.20 (subd. 3), which grants the People the right to appeal from an order setting aside a verdict, entered pursuant to CPL 330.30 or CPL 370.10. That provision is not violative of the double jeopardy protections of the Federal and New York State Constitutions. When the People prevail on an appeal taken pursuant to CPL 450.20 (subd. 3), the original verdict is reinstated. The defendant is not subjected to a second trial for the same offense. The policy against multiple prosecutions is therefore not violated (cf. United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232; People v. Brown, 40 N.Y.2d 381, 386 N.Y.S.2d 848, 353 N.E.2d 811).
The jury verdict in this case was justified if the jury believed he prosecution witnesses. The testimony of those witnesses was not incredible as a matter of law; defense counsel was afforded full opportunity to cross-examine them and to then point out the inconsistencies and the vagaries in their testimony. Upon the facts of this case, it was an improper invasion into the province of the jury to resolve issues of credibility upon the defendant's motion to set aside the verdict.
MARTUSCELLO, J., dissents and votes to modify the order by deleting therefrom the provision ordering a new trial and substituting therefor a provision dismissing the indictment, with the following memorandum:
The testimony which purports to support this verdict is so confused, so inconsistent and so apparently contrived to facilitate Esther Dorta's conviction that it cannot be said that guilt has been established beyond a reasonable doubt. Further, by upholding the jury's verdict, this court has let stand a determination based solely upon the uncorroborated testimony of one admitted accomplice and one witness whose testimony gives rise to considerable suspicion as to its veracity on pivotal issues.
During the afternoon hours of June 2, 1973, People's witnesses Patricia Purvis and Deborah Andersen went to the home of 71-year-old John Kovachich with the hope of obtaining money for dungarees. Shortly after 1:30 P.M., Juan Dorta and his pregnant wife, Esther, joined them there. After Kovachich returned with beer for his friends, he was greeted with Juan Dorta's demand for money. When Kovachich refused, Juan Dorta stabbed him with Purvis' knife.
To substantiate the case against Mrs. Dorta, Andersen testified that, while Kovachich went to get the beer, the group began to discuss how much money decedent Kovachich was believed to have. Esther Dorta, Andersen testified, had complained that she needed money for her baby. As the group continued this discussion, Andersen friend Purvis, who was described by Andersen as 'crazy', passed a knife to Esther Dorta and Esther passed it on to Juan.
On cross-examination Andersen conceded that she had not mentioned Esther Dorta's complaint for money in any prior statement to the police, or in her testimony before the Grand Jury. Similarly, on cross-examination Andersen became unsure whether the knife had been passed to Esther Dorta by Purvis, and admitted that she had been told that if the knife had been handed to Esther Dorta, then Esther would be in the case. Testimony given earlier before the Grand Jury indicated that Anderson did not see the knife pass from Purvis to Esther Dorta to Juan Dorta. Andersen admitted that, after interrogation on one occasion, she had heard the police tell her uncle that she would not be of much help. To compound the gaps in this already confused testimony, Andersen denied in her original statement to the police that she had even been at the Kovachich home on the day in question.
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