People v. Giuliano

• Decision Date: 11 June 1985
• Citation: 482 N.E.2d 557,492 N.Y.S.2d 939,65 N.Y.2d 766
• Parties: , 482 N.E.2d 557 The PEOPLE of the State of New York, Respondent, v. Joseph GIULIANO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 939

492 N.Y.S.2d 939

65 N.Y.2d 766, 482 N.E.2d 557

The PEOPLE of the State of New York, Respondent, v. Joseph GIULIANO, Appellant.

Court of Appeals of New York.

June 11, 1985.

Mark M. Baker and Barry Ivan Slotnick, New York City, for appellant.

Mario Merola, Dist. Atty., New York City (Peter S. Baranowicz and Jeremy Gutman, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 102 A.D.2d 559, 477 N.Y.S.2d 358, should be reversed, the conviction vacated and the indictment dismissed.

Defendant was accused of killing Frank Cirillo during the early morning of Sunday, March 7, 1982. He was convicted, after a The well-settled standard of proof in circumstantial evidence cases is that the facts from which the inference of defendant's guilt is drawn must be inconsistent with the defendant's innocence and must exclude to a moral certainty every other reasonable hypothesis (People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228; People v. Way, 59 N.Y.2d 361, 365, 465 N.Y.S.2d 853, 452 N.E.2d 1181; People v. Bearden, 290 N.Y. 478, 480, 49 N.E.2d 785). Viewing the evidence in the light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn therefrom, this court must now determine whether the jury reasonably concluded that the prosecution met this standard. Application of these principles minimizes "a danger legitimately associated with circumstantial evidence--that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree" (People v. Benzinger, 36 N.Y.2d 29, 32, 364 N.Y.S.2d 855, 324 N.E.2d 334; accord, People v. Kennedy, 47 N.Y.2d 196, 202, 417 N.Y.S.2d 452, 391 N.E.2d 288; People v. Cleague, 22 N.Y.2d 363, 367, 292 N.Y.S.2d 861, 239 N.E.2d 617).

jury trial, of manslaughter in the first degree, and a divided Appellate Division affirmed. On appeal, defendant contends that the evidence adduced at trial, which was entirely circumstantial, was insufficient to establish his guilt beyond a reasonable doubt.

Here, the inferences that could be drawn from the evidence are consistent with innocence as well as guilt, and there are logical gaps in the People's case that cannot be bridged by the drawing of reasonable, permissible inferences from the evidence. Accordingly, we conclude that the jury's verdict was not supported by sufficient evidence.

The People's case was built around four episodes summarized below: events at the Park Tavern the night of the murder; defendant's contacts with a derringer; a conversation at the Spirits Pub two days after the murder; and an exchange between defendant and his father at the station house.

THE PARK TAVERN

Defendant arrived at the Park Tavern, on Morris Park Avenue in The Bronx, late in the evening of Saturday, March 6, 1982, accompanied by his friend of several years, Joseph Olivieri. Olivieri's wife, Debra, arrived at the Tavern at about 11 p.m. Debra had been shopping with Frank Cirillo, with whom she had had a relationship while Olivieri was in jail for robbery. Frank Petrucci then came into the Tavern with Eddie Cullen. Cullen told Debra that Cirillo, who had driven Cullen and Petrucci to the Tavern at his suggestion, was outside in the car and wanted to speak with her. Debra, seated at the bar with her husband and the defendant, refused.

Some time later, another patron, John Bardino, asked the bartender, Ralph Mazzella, for a rag, stating that someone had been hurt outside. Mazzella testified that at that moment he did not see defendant at the bar, although defendant could have been anywhere inside the crowded, noisy Tavern. Bardino soon returned, announced that someone had been shot, and asked that an ambulance be called. Mazzella testified that Olivieri asked defendant, "What the fuck did you do?" Mazzella heard no more of this conversation, and did not know to what Olivieri's question related. While Olivieri was at the telephone calling an ambulance, he heard someone say "I shot him," and he further testified that "it might have been the voice of Joe Giuliano." Petrucci, too, heard someone say, "I shot him, I think he is dead," but had no idea who made the statement. Similarly, Cullen heard a voice state "I shot the kid." At trial, Cullen testified repeatedly that he did not recognize the voice or see the declarant, although he had expressed the view in his testimony before the Grand Jury, read into the trial record for impeachment purposes, that he believed the statement had been made by defendant. After the shooting defendant remained in the Tavern for at least 45 minutes. The next day, Olivieri asked defendant, "Joey, what happened

                last night?"   Defendant, according to Olivieri, replied, "I don't want to talk about it because I been pretty high and I didn't know exactly what had happened."
                

THE DERRINGER

Cirillo was shot behind the left ear with a single .22 caliber bullet. He was found seated behind the steering wheel of his station wagon, his head slumped forward. His window was open some 3 to 4 inches. No powder burns were found on the body or the car. No shell casings were found, and no murder weapon was recovered. Olivieri testified that about a week before the crime, he and Cullen were present as defendant adjusted the barrel of a .22 caliber antique derringer and returned it to its owner, Cirillo. Cullen, by contrast, testified that he had sold the derringer to Cirillo, reacquired it, and then sold the gun to defendant after he adjusted the barrel about a month before the crime.

The People's ballistics expert, Detective Steven Colangelo, testified that the fatal bullet could have been fired by a .22 caliber rifle, semiautomatic pistol or a derringer--a range including hundreds of...