People v. Figueroa

• Decision Date: 13 May 1993
• Citation: 193 A.D.2d 452,597 N.Y.S.2d 685
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose FIGUEROA, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Reynolds REYES, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 685

597 N.Y.S.2d 685

193 A.D.2d 452

The PEOPLE of the State of New York, Respondent, v. Jose FIGUEROA, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Reynolds REYES, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

May 13, 1993.

Before MILONAS, J.P., and ELLERIN, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Bernard Fried, J.), rendered January 16, 1991, after jury trial, convicting defendant Figueroa of two counts of rape in the first degree, and sentencing him to consecutive indeterminate terms of imprisonment of from 8 1/3 to 25 years and from 2 to 6 years, respectively, and the judgment of the same court and Justice, also rendered January 16, 1991, convicting defendant Reyes of one count of rape in the first degree, and sentencing him to an indeterminate term of imprisonment of from 5 to 15 years, unanimously reversed, on the law, the judgments vacated, and the matters remanded to Supreme Court for separate trials.

Defendants were each accused of a sexual assault which allegedly occurred in a bathroom of the psychiatric emergency unit at the Metropolitan Hospital Center. They were jointly tried and convicted of rape in the first degree, Reyes of one count and Figueroa of two counts. Figueroa was also charged with one count of sexual abuse in the first degree for allegedly fondling the complaining witness while she was tied to a gurney, but he was acquitted on this charge. Each defendant was alone with the complaining witness at the time of the two alleged rapes, but it is the prosecution's theory that they acted together as part of a common plan or scheme. No physical evidence was introduced at trial.

The complaining witness alleged at trial that, shortly after she was brought to the hospital and while she was still restrained on the gurney, defendant Figueroa fondled her and told her she would have sex with him. She maintained that it was at this time, while Figueroa was out of the room, that she removed and swallowed her diamond stud earrings. She said Figueroa told her that everyone on the staff was in on his plan and that she would "do it" with all of them. According to complainant, Figueroa directed her to go to the rear bathroom, ordered her against the wall and then, using a condom, had intercourse with her. About 15 minutes later, Figueroa again ordered her to go to the same bathroom. Defendant Reyes then entered. Complainant testified that she assumed Reyes was part of Figueroa's "plan" and begged him "not to do this." She tried to persuade Reyes to make a call for her. Reyes allegedly agreed but, when she moved towards the door, he told her she had "better do this first". Reyes, also using a condom, then had intercourse with her.

Defendant Figueroa pleaded not guilty and did not testify at trial. Reyes, both in a pre-trial statement to the police and at trial, admitted sexual contact with complainant but insisted that it was consensual. According to his testimony, "she told me that she needs me to do her the favor and that she'll return a favor to me." Reyes maintained Figueroa told him that complainant "was 'bugging out' and offered to do him a favor", that he told Reyes, "I did it with her", and joked about it and that it was Figueroa who supplied him with the condom.

On appeal, defendants contend that their guilt was not proved beyond a reasonable doubt and that, in any event, their due process rights were violated by Supreme Court's failure to grant the motion for severance. The People respond that the motion was unaccompanied by any elaboration on the facts sufficient to support the claim of inconsistent defenses and that, in any event, the decision to grant a severance was a matter of judicial discretion which will not ordinarily be disturbed on appeal (People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221, revd. on other grounds and remanded 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162, on remand 70 N.Y.2d 733, 519 N.Y.S.2d 959, 514 N.E.2d 379). However, the court's discretion is not without limitation (People v. Cardwell, 78 N.Y.2d 996, 997, 575 N.Y.S.2d 267, 580 N.E.2d 753) and, by this stage of the proceedings, pre-trial hearings had been conducted and the pre-trial statement of codefendant Reyes had been submitted in support of Figueroa's pre-trial omnibus motion. The substance of the respective defenses had thus been presented to the court, and the subject of the redaction of Reyes's statement to police had been extensively discussed in the context of a Bruton (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476) motion (People v. La Belle, 18 N.Y.2d 405, 411, 276 N.Y.S.2d 105, 222 N.E.2d 727).

The People's intimation that the court was not sufficiently apprised of the problem presented by the antagonistic defenses is uncompelling. An appellate court is empowered to consider the trial record retrospectively to determine whether an injustice has occurred or substantial rights of a defendant have been impaired (People v. La Belle, supra, at 409, 276 N.Y.S.2d 105, 222 N.E.2d 727). Moreover, at the time the application for severance on the ground of inconsistent defenses was made, counsel for defendant Figueroa had provided the court with a copy of the leading decision of the Court of Appeals in People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34, which is entirely dispositive of the issue.

The test set forth in Mahboubian (supra) is that "severance is compelled where the core of each defense is in irreconcilable conflict with the other and where there is a significant danger, as both defenses are portrayed to the trial court, that the conflict alone would lead the jury to infer defendant's guilt" (74 N.Y.2d at 184, 544 N.Y.S.2d 769, 543 N.E.2d 34). In that case, as here, the ...