People v. Farruggia
| Decision Date | 12 December 1980 |
| Citation | 433 N.Y.S.2d 950,77 A.D.2d 447 |
| Parties | PEOPLE of the State of New York, Respondent, v. Robert FARRUGGIA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James L. Kemp, Rochester, for appellant.
Lawrence T. Kurlander, Rochester (David Pogue, Rochester, of counsel), for respondent.
Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and WITMER, JJ.
The jury found defendant guilty of grand larceny in the first degree (Penal Law, § 155.40). He was accused of stealing money and property belonging to one John Hucknall by instilling in Hucknall a fear that defendant or another person would cause physical injury to Hucknall.
Hucknall was a principal prosecution witness at trial. On direct examination he fully narrated events constituting defendant's criminal conduct. On cross-examination, however, he repeatedly invoked his right against self-incrimination and refused to answer a number of questions. Hucknall gave no self-incriminating testimony in response to the direct examination, nor did he at any time waive his right against self-incrimination. No part of Hucknall's testimony was struck by the trial court and the chief issue on appeal is whether Hucknall's exercise of his Fifth Amendment rights violated defendant's right to "be confronted with the witnesses against him" (U.S.Const., 6th Amdt.; N.Y.Const. art. I, § 6).
The relevant facts may be drawn from Hucknall's testimony. He stated that he owned three businesses; a nightclub, an insurance agency, and a furniture and appliance store, all in the Village of Brockport. In January or February 1979 he asked one of his employees, Donald Lang, to help him obtain a loan of $150,000. Hucknall, through Lang's efforts, was placed in contact with the defendant. On February 1, 1979 Hucknall had a phone conversation with defendant in which he was told that defendant could take care of everything; that Hucknall should meet with defendant on the next day at defendant's combination apartment and grocery store; and that Hucknall should bring with him $2,000 in cash to help place the loan. Hucknall, accompanied by Lang, went to defendant's apartment on February 2, 1979, and in the course of their meeting defendant said that somebody wanted to hurt Hucknall, that there was a "contract" on his life and that someone was going to "snuff" Hucknall. At defendant's request Hucknall gave defendant $2,000 to find out more information on the contract.
On the following evening defendant went to Hucknall's nightclub and there told Hucknall that there was an open "contract" for $10,000 on Hucknall, that there were five people defendant had to reach and that it would cost $15,000 to cancel the contract. Defendant told Hucknall that Hucknall would need all the money he could lay his hands on and thereupon Hucknall gave defendant $1,700, taken from the nightclub cash registers, "to stop whatever was going on".
On the next day defendant told Hucknall that he was disappointed that more cash had not been raised. Hucknall then arranged with defendant to give defendant some furniture, and defendant stated that he would finalize the payment to the five individuals and that Hucknall could pay defendant back later. Thereafter the furniture was delivered and defendant said that he would contact Hucknall in a few days to make sure that Hucknall was in the clear. During these conversations Hucknall spoke with defendant about the $150,000 loan but defendant said that the contract had to be paid off first. Hucknall testified that no loan was ever obtained.
Hucknall also testified that the Rochester Police Department contacted him in March 1979. He agreed to cooperate with them, and the police sent him to meet with defendant. At this meeting defendant told Hucknall that he had paid.$19,000, not $15,000, to pay off the people who were "after" Hucknall. Hucknall asked defendant for proof that the contract was real and defendant said he would give such proof at some later date. Defendant also told Hucknall that he was unable to negotiate the $150,000 loan but would try to get it, or would return the $15,000.
Hucknall identified several of his furniture store receipts which were made out to defendant, in a total amount of $9,000. He further testified that the wholesale value of the merchandise listed on the receipts was $7,800 and the normal retail value thereof would be $14,800. The $9,000 figure represented the discounted value of the furniture. Hucknall also said that defendant never returned the furniture nor paid for any of it, nor did defendant return any of the money Hucknall had given him. He testified that defendant had offered to return the $15,000, and he added that he had never refused to accept such payment.
On cross-examination Hucknall declined to answer questions as to whether he had sought financial aid or secured loans from banks, insurance companies, Westinghouse Credit Corporation or private investors. He also refused to answer questions dealing with his business relations with insurance companies and whether insurance companies had demanded from him moneys which were owed to them. He refused to answer questions concerning names of particular creditors. He also refused to answer a series of questions as to whether he had diverted insurance company funds to his own use. The following is illustrative:
Defense counsel's purpose in asking such questions was premised upon a defense theory of which the court was made aware before Hucknall took the witness stand. At that time, Hucknall's personal attorney, the prosecutor and defense counsel argued before the court as to whether, if Hucknall testified, defense counsel would be allowed to cross-examine him concerning Hucknall's reasons for requiring the loan. Defense counsel argued as follows:
While it is true, as argued by the People, that defendant never moved to strike all or part of Hucknall's direct testimony, the issue, affecting as it does a substantial right of the defendant, nonetheless is preserved for review. Defendant's position with respect to his perceived need for extensive cross-examination of Hucknall was fully made known to the court (CPL 470.05, subd. 2) and it may...
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