People v. Fratello

• Decision Date: 01 December 1998
• Citation: 684 N.Y.S.2d 149,92 N.Y.2d 565,706 N.E.2d 1173
• Parties: , 706 N.E.2d 1173, 1998 N.Y. Slip Op. 10,515 The PEOPLE of the State of New York, Respondent, v. Frank FRATELLO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 149

684 N.Y.S.2d 149

92 N.Y.2d 565, 706 N.E.2d 1173, 1998

N.Y. Slip Op. 10,515

The PEOPLE of the State of New York, Respondent, v. Frank FRATELLO, Appellant.

Court of Appeals of New York.

Dec. 1, 1998.

Dublirer, Haydon, Straci & Victor, New York City (Paul A. Victor and Flora Edwards of counsel), for appellant.

Robert T. Johnson, District Attorney of Bronx County, Bronx (Karen P. Swiger and Peter D. Coddington of counsel), for respondent.

OPINION OF THE COURT

LEVINE, J.

Defendant was convicted, following a bench trial, of attempted murder, second degree, assault, first degree, criminal use of a firearm, first degree, and criminal possession of a weapon, second and third degrees. All of the charges arose out of the shooting of Guy Peduto shortly after 2:00 A.M., December 7, 1993, during a car chase in the Throgs Neck section of the Bronx. Peduto received serious head and body wounds. The rear window of the Pontiac sedan he was driving was shot out and there were multiple bullet holes in the automobile. When he was hit, Peduto lost control of the vehicle and crashed into two cars parked in a driveway. His assailants fled in their vehicle, leaving two Acura hubcaps and five 9 millimeter bullet casings at the scene.

Two out-of-court statements by Peduto, naming defendant as one of his attackers, were admitted into evidence under the "excited utterance" exception to the hearsay rule (see, People v. Nieves, 67 N.Y.2d 125, 135, 501 N.Y.S.2d 1, 492 N.E.2d 109). The first of Peduto's accusatory declarations was made to Dominic Cleary, a layperson who was walking to his home nearby when he heard gunshots and the crash, and came to Peduto's assistance. The second statement implicating defendant was made about 10 minutes later to Officer Dennis Gardner, the first of the police to arrive at the scene.

Peduto was not called to the stand by the prosecution, having recanted his previous identifications of defendant in an affidavit submitted by the defense before the trial. Instead, Peduto was called as a defense witness. At the time of the trial, he was in a United States detention facility awaiting trial on Federal criminal charges. In his direct testimony he denied defendant was one of the persons who shot him. On cross-examination by the prosecution, he denied having told anyone that defendant had shot him. He described in detail the physical appearance of the person he saw firing at him. Peduto also acknowledged a 15-year close friendship with defendant and admitted that he had an extensive criminal record arising out of his activities as a carjacker. He invoked his privilege against self-incrimination in response to other questions about specific car thefts, and his criminal associates, including one Glicerio Castaldo.

The People introduced rebuttal evidence that Peduto had told another police officer, John Fitzgerald, both at the scene of the incident and after his removal to a hospital, that defendant was one of the shooters. Another officer, Detective George Wood, testified to a later conversation with Peduto at the hospital, after Peduto had been told by hospital personnel that he would survive the shooting. Peduto told Detective Wood that he knew the identity of the shooter but refused to name him, explaining that "I will take care of it myself." The People also called Glicerio Castaldo as a rebuttal witness. Castaldo had been a criminal confederate of Peduto who became an FBI informant under a plea agreement. He recounted a visit with Peduto after he left the hospital. Peduto had described in detail how defendant drove up beside his car in a white Acura Legend when the shooting began, both defendant and another acquaintance firing at him. Peduto also told Castaldo that now that he had recovered from his wounds, "he had to go get it straightened out."

The trial court sitting without a jury rendered a guilty verdict. The Appellate Division affirmed (243 A.D.2d 340, 663 N.Y.S.2d 169). A Judge of this Court granted defendant leave to appeal, and we now also affirm.

In urging reversal, defendant's initial attack is on the admissibility, under the excited utterance exception, of Peduto's extrajudicial statements identifying defendant as his assailant. Defendant's arguments are unavailing. The testimony of Cleary was that he came to Peduto's aid less than a minute after the car crash. Peduto was bleeding profusely, moaning in pain and begging for help. Peduto twice named defendant when Cleary asked who shot him. Officer Gardner, who assisted removing Peduto from the vehicle and transferring him to an ambulance, stated that Peduto was crying hysterically, repeatedly asking whether he was going to die. Peduto identified defendant as the person who shot him, and repeated the name over and over again. He referred to defendant as a one-time friend. Peduto also told Gardner that the assault vehicle defendant drove was a white Acura.

The foregoing evidence represents near-classic examples of the excited utterance exception. Thus, the trial court could readily conclude that Peduto's statements were admissible under that exception as "spontaneous declarations made by a participant while he is under the stress of nervous excitement resulting from an injury or other startling event, while his reflective powers are stilled and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection and deliberation" (People v. Caviness, 38 N.Y.2d 227, 230-231, 379 N.Y.S.2d 695, 342 N.E.2d 496). That the declarations were made in response to questioning, and that there was an approximately 10-minute interval from the happening of the event until the second declaration was made to Officer Gardner, would not impair their admissibility, since neither of these factors detracted from their spontaneity under the circumstances as described by the witnesses to whom Peduto spoke at the crime scene (see, People v. Cotto, 92 N.Y.2d 68, 79, 677 N.Y.S.2d 35, 699 N.E.2d 394; People v. Edwards, 47 N.Y.2d 493, 497-498, 419 N.Y.S.2d 45, 392 N.E.2d 1229).

Defendant, however, contends that the circumstances of a nighttime attack during a high-speed car chase demonstrated that Peduto lacked the capability of recognizing him as one of the attackers. To be sure, for an excited utterance to be admissible, it must be inferable that the declarant had an opportunity to observe personally the event described in the declaration (see, 6 Wigmore, Evidence § 1751, at 222 [Chadbourn rev 1976] ). In most instances, that requirement is satisfied self-evidently from the circumstances that the declarant was an actual participant in the event which is the subject of the declaration (id.).

Here, the evidence permitted the trial court reasonably to infer that Peduto had a sufficient opportunity to observe who attacked him and to identify defendant as one of the shooters. Peduto had been a close personal friend of defendant for many years. The car chase was extended over more than a city block, which was illuminated by street lights. Peduto, in his statement to Officer Gardner, was apparently able accurately to identify the crime vehicle as a white Acura Legend, as confirmed by the hubcaps found at the scene. Moreover, Peduto testified that he could and did observe one of the attackers through his rearview mirror during the pursuit sufficiently to describe his appearance in detail.

The trial court was charged with the responsibility of resolving a mixed question of law and fact in its initial determination of the admissibility of the Peduto declarations as excited utterances (see, People v. Edwards, supra, 47 N.Y.2d, at 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229; People v. Caviness, supra, 38 N.Y.2d, at 231, 379 N.Y.S.2d 695, 342 N.E.2d 496). In making that initial determination of admissibility, the trial court necessarily rejected defendant's objection based upon the asserted inability of Peduto to have observed the defendant as one of the shooters. The Appellate Division, in upholding the admissibility of Peduto's declarations under the excited utterance exception, agreed: "The declarant was a participant in the events, clearly speaking from his personal observation" (243 A.D.2d, at 340, 663 N.Y.S.2d 169, supra ). The undisturbed findings by the courts below that Peduto had an opportunity to observe who attacked him have support in the record and are, thus, beyond our further review (see, People v. Cotto, supra, 92 N.Y.2d, at 76-77, 677 N.Y.S.2d 35, 699 N.E.2d 394).

Nonetheless, defendant asserts that the trial court committed reversible error in connection with the admission of Peduto's statements, in refusing to receive (1) expert testimony on night visual perception under Peduto's circumstances; and (2) evidence, disclosed by the prosecution to the defense, that Peduto was biased against defendant because he feared retaliation for his own previous assault on defendant. It was well within the trial court's sound discretion to reject expert testimony on a matter (night visibility) that is a subject of common experience of lay triers of fact (see, People v. Mooney, 76 N.Y.2d 827, 828, 560 N.Y.S.2d 115, 559 N.E.2d 1274; People v. Cronin, 60 N.Y.2d 430, 433, 470 N.Y.S.2d 110, 458 N.E.2d 351).

Nor do we discern any error in the trial court's treatment of Peduto's claimed bias against defendant on the admissibility of his declarations. Generally, the bias of an excited utterance declarant functions as a basis for impeachment of the declaration, thus pertinent to the weight, rather than admissibility of the declaration (see, 6 Wigmore, Evidence, op. cit., § 1751, at 224). That was the ruling of the trial court here. To the extent that defendant contends that Peduto's bias prompted him to name defendant without actually having made any observation of his attacker, defendant is foreclosed by the undisturbed findings, already discussed, that Peduto's identification was based upon personal observation.

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