People v. Fasano

• Decision Date: 06 July 1962
• Citation: 230 N.Y.S.2d 689,11 N.Y.2d 436,184 N.E.2d 289
• Parties: , 184 N.E.2d 289 The PEOPLE of the State of New York, Respondent, v. Robert FASANO, Appellant. The PEOPLE of the State of New York, Appellant, v. Salvatore MONACO, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 689

230 N.Y.S.2d 689

11 N.Y.2d 436, 184 N.E.2d 289

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

The PEOPLE of the State of New York, Appellant, v. Salvatore MONACO, Respondent.

Court of Appeals of New York.

July 6, 1962.

Edward S. Silver, Dist. Atty. (William I. Siegel and David Diamond, Brooklyn, of counsel), for the People, appellant and respondent.

Maurice Edelbaum, New York City, for appellant Robert Fasano.

Maurice Edelbaum, New York City, for respondent Salvatore Monaco.

FROESSEL, Judge.

On the night of January 27, 1958 Louis Cuomo was shot to death on a street corner in Brooklyn during an act of teen-age violence. Defendants, Robert Fasano and Salvatore Monaco, were tried upon a joint indictment which charged them with murder in the first degree in that they willfully and feloniously shot decedent while 'acting in concert and each aiding and abetting the other'. The jury found each defendant guilty of murder in the second degree. The Appellate Division, Second Department, unanimously (1) affirmed the judgment of conviction with respect to defendant Fasano, and (2) reversed on the law the judgment convicting defendant Monaco, and ordered a new trial as to him. It is from the judgment and the order of the Appellate Division that the present appeals have been taken by defendant Fasano and the People respectively.

The relevant facts, which the jury were entitled to find, are briefly as follows: On the night of the homicide, defendants, both members of a teen-age gang known as the 'Gremlins', set out from Fasano's home with the avowed purpose of 'grabbing' a member of the 'Ditmas Dukes', a hostile gang, so that they could 'hurt' him, 'give him a beating'. There had been trouble culminating in fights or 'rumbles' between the two gangs since the preceding Summer, and the reason for defendants' expedition into the 'Duke territory' was to avenge a beating which Monaco had received.

On January 18, 1958 defendants met another member of the Gremlins, John D'Orazio, and asked him whether he had a gun. D'Orazio replied that he did, a .22 caliber rifle, and defendants thereupon told him to 'bring it down and cut it down'. After their meeting D'Orazio went home, and the following day cut approximately 9 inches off the stock and 19 1/2 inches off the barrel; this left the weapon about 15 inches long. Approximately a week later, D'Orazio placed the rifle under some papers in an ashcan outside a bowling alley, which he thereupon entered 'bragging around that I had a gun'. When defendant Fasano arrived, unaccompanied by Monaco, D'Orazio stated that he had thrown the gun into the ashcan, which gun Fasano retrieved.

Although Monaco was not specifically aware of it at the time, when defendants left Fasano's home on the night of the homicide the latter had the sawed-off rifle concealed under his jacket, but while they were walking toward 18th and Coney Island Avenues the scene of the shooting Fasano showed Monaco the gun. According to defendants' statements to the police and the District Attorney, which were not denied and were admitted in evidence without objection, it was their intention to 'grab a Duke, show him the gun and give him a beating'.

When defendants neared the intersection of Coney Island and 18th Avenues, they saw three cars with Dukes in them and thereupon concealed themselves in a nearby alleyway. The cars drove off; one owned by Adam Gragnani passed the alleyway in which defendants remained hidden. Monaco stated that it was at about this time that Fasano loaded the rifle; he knew that Fasano had 'put the shell in there'.

Decedent, together with James Autunnale, William Clifford and Nicholas Benvenuto, all members of the Dukes, was in Gragnani's automobile. According to Gragnani, two other cars containing Dukes were parked at the corner. He testified that they were 'looking to get' members of the Gremlins because they had received threatening telephone calls from the latter, and because 'they were down to our candy store a week before chasing our cars'. On the way to the Prospect Park neighborhood where the Gremlins congregated, the three cars separated.

Nicholas Benvenuto testified that he had accompanied decedent and the others in Gragnani's car to 15th Avenue, the Gremlin's territory, in order to try to prevent a fight between the two gangs. He also stated there had been a 'bat (sawed-off pool cue), chain, regular junk' in the car, but that it had been thrown out of the car on the way back to 18th Avenue. William Clifford testified that the purpose of their drive was to see one 'Dennis the Menace', who was to tell the Gremlins that the Ditmas Dukes did not want to have any more fighting. Clifford saw no weapons in the car. James Autunnale corroborated Clifford's version of their ride.

After they had spoken to Dennis, decedent and the other boys returned to their own neighborhood. Gragnani parked his car on the east side of Coney Island Avenue diagonally across from Lord's Luncheonette located on the northwest corner of Coney Island and 18th Avenues. Decedent and some of the others left the car first and started toward the corner intending to cross over to Lord's.

As they approached the corner, defendants, who had observed them from their vantage point in the alleyway, charged out of the alley, ran east on 18th Avenue past the luncheonette, crossed Coney Island Avenue, and when about three feet away from decedent, Fasano took the gun from his jacket and fired the fatal shot. Defendants then ran from the scene and went to Prospect Park Lake, into which they threw the gun.

Mortally wounded, decedent, holding his side, started to run back toward the car in an attempt to escape from defendants; he was assisted by some of the other boys but collapsed on the sidewalk a short distance away. An autopsy performed the next day revealed that death was caused by a .22 caliber rifle bullet which entered decedent's left chest near the armpit.

Two teen-age girls, Merrily Jones and Ellen O'Brien, were standing on the corner in front of Lord's Luncheonett when the defendants ran past them on their way toward decedent. Each identified Fasano as the one who fired the shot. Merrily Jones testified that at the time of the shooting Monaco stood a little behind Fasano; that she did not see decedent do anything, and that there were no other persons behind defendants at that moment. She also said that while in the candy store that afternoon she overheard decedent state that someone wanted to fight them, but that he did not want to have anything to do with it. Ellen O'Brien also testified that there were no boys running after defendants.

Defendants were arrested at about 11:00 P.M. on the night of the homicide and, after approximately two hours of questioning, Fasano related how they had gone out that evening to beat up a Duke, and admitted he had shot the decedent. Monaco was then brought into the room and Fasano told him, 'Sal, I told him the whole story. Now you tell him it'. Fasano reiterated his statement in the presence of Monaco, which the latter confirmed, admitting that Fasano had shown him the gun on the way to the location. Defendants were kept at the police station until daylight, when they accompanied the officers to the lake to search for the rifle; it was never recovered. Defendants do not claim that they were deprived of food, maltreated or coerced into making the inculpatory statements, which, as noted, were admitted in evidence without objection.

Defendants did not take the stand or call any witness on their behalf. Their defense was that they had gone out merely for the purpose of beating up a Duke, that Fasano carried the gun merely to scare their victim, that they never intended to kill anyone, and that it was not until they were confronted by a large number of armed, hostile Dukes that Fasano became frightened and shot in self-defense. Monaco additionally contended that he was unaware that Fasano was going to shoot the rifle, and that he at no time aided or abetted the latter in the killing.

Defendants' assertion that they were 'cornered' or surrounded was disputed by the testimony of Merrily, Jones and Ellen O'Brien both of whom stated that there was no one behind defendants as well as by Gragnani and Clifford. The witness Gragnani did say that he saw decedent with a sawed-off pool cue in his hand after someone yelled 'He's got a Roscoe', but this was denied by Benvenuto, Clifford and Autunnale. Moreover, from defendants' own statements the jury could have concluded that they rather than the Dukes were the aggressors. Fasano stated: 'We started towards them figuring on giving them a scare and running them off. We started running toward them * * *.' Similarly, Monaco stated 'we figured before they chased us we would run at them. And we ran at them * * *.'

A further indication of defendants' aggressive intent at the time of the killing is found in the testimony of John Mills, also a member of the Ditmas Dukes. Shortly before the shooting, defendants ran toward Mills, who saw Fasano put his hand inside his jacket and pull out 'what looked like a bulky gun'. Mills ran away from defendants who were chasing him, fasano shouting 'Get that Duke * * *.'

The narrow question presented by the People's appeal the only ground for the Appellate Division's reversal of the Monaco conviction is whether the Trial Judge committed reversible error when he declined to amplify his main charge (to which no exception was taken) by charging, at defendant's request, that if the 'jury have a...