People v. Giuliano

• Decision Date: 12 July 1984
• Citation: 477 N.Y.S.2d 358,102 A.D.2d 559
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph GIULIANO, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 358

477 N.Y.S.2d 358

102 A.D.2d 559

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

Supreme Court, Appellate Division First Department.

July 12, 1984.

Irving Anolik and Morris D. Weintraub, New York City, for defendant-appellant.

Harold Kenneth King, Jr., Asst. Dist. Atty., of counsel (Steven R. Kartagener, Asst. Dist. Atty., with him on the brief; Mario Merola, Dist. Atty.), for respondent.

Before CARRO, J.P., and ASCH, FEIN, MILONAS and KASSAL, JJ.

FEIN, Justice.

There should be an affirmance in this wholly circumstantial evidence case. If believed by the jury, as apparently it was, the evidence was sufficient to exclude to a moral certainty, every conclusion other than guilt.

As stated in People v. Kennedy, 47 N.Y.2d 196, at 262, 417 N.Y.S.2d 452, 391 N.E.2d 288:

"The conclusion of guilt must be consistent with and flow naturally from the proven facts and * * * those facts viewed as a whole must exclude 'to a moral certainty' every conclusion other than guilt." (Citing People v. Cleague, 22 N.Y.2d 363, 367 People v. Benzinger, 36 N.Y.2d 29 ).

The evidence is sufficiently discussed in the concurring and dissenting opinions.

There are three troublesome questions. The first two deal with motive. Defendant had no apparent motive. Olivieri, one of the witnesses against defendant, had a motive in that the victim apparently had some kind of an affair with Olivieri's wife. Evidence of motive is relevant and material in circumstantial evidence cases in weighing evidence (People v. Fitzgerald, 156 N.Y. 253, 258, 50 N.E. 846). However, it is not dispositive. Weighing evidence is the function of a properly instructed jury. The evidence as to motive and as to the events was fully submitted to the jury.

The remaining question relates to the admission into evidence of police testimony relating defendant's father's response to defendant's statement in the police precinct:

(Defendant) "If I ever find out who ratted on me, I will kill the guy."

(Father) "That is why you are here, because of your fucking temper."

The father's statement was inadmissible. However, that is not dispositive. The error was harmless in our view (People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

Obviously there were serious questions of credibility. However, these were for the jury, even in a circumstantial evidence case. Once resolved against the defendant, we are required to accept their verdict, unless the testimony is insufficient or incredible as a matter of law. Such is not the case here.

As further stated in Kennedy, supra, 47 N.Y.2d at 203, 417 N.Y.S.2d 452, 391 N.E.2d 288:

"The circumstantial evidence * * * must be viewed in the light most favorable to the People since they have prevailed at trial and thus we are required to assume that the jury credited the People's witnesses (People v. Montanez, 41 NY2d 53, 57 )."

Applying this standard to the circumstantial evidence in this case, the conviction should be affirmed.

Accordingly, the judgment of the Supreme Court, Bronx County, rendered January 13, 1983, convicting defendant after a jury trial of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of 6 to 18 years, should be affirmed.

Judgment, Supreme Court, Bronx County, rendered on January 13, 1983, affirmed.

All concur except KASSAL, J., who concurs in an opinion, and MILONAS, J., who dissents in an opinion.

KASSAL, Justice (concurring).

In the early morning hours of March 7, 1982, the body of Frank Cirillo was found with a bullet in the head in the driver's seat of a vehicle parked in front of the entrance to the Park Tavern in the Bronx. John Mazzella, the bartender at the Park Tavern, had known defendant for 6 or 7 years and Joseph "Joey Dee" Olivieri for a couple of months. At the time of the shooting, Olivieri, his wife and the defendant, were in the bar, which was admittedly crowded. At some point, it was announced that Cirillo had been shot. Olivieri, who was seated at the bar with defendant, asked Giuliano, "What the fuck did you do?" According to Mazzella, the question was posed to defendant, not shouted in his direction, as is suggested by the dissent. Olivieri testified that after Mazzella told him to call the police, he dialed 911 and heard someone in the bar say, "I shot him." While he was not certain that it was defendant since appellant was behind him and there were people in the doorway screaming, he stated, "In my opinion it might have been the voice of Joe Giuliano, but I am not sure, my back was towards him." In any event, Olivieri, who was a good friend of the defendant for about 5 years, testified: "It sounded like him but I am not sure."

Edward Cullen who had entered the bar with Frank Petrucci, also known as "Frank Serpico," also heard someone say, "I shot the kid" but claimed he did not recognize the voice. However, Cullen admitted at the trial to having testified before the Grand Jury, "I think it was Joe Giuliano. * * * I thought I heard him say I shot the kid." Cullen also admitted having seen Giuliano in the bar at the time the statement was made.

The deceased, who had accompanied Cullen and Petrucci to the Park Tavern, remained outside in the car while the other two went inside. The car was parked directly in front of the entrance to the bar, in such a manner as to be clearly visible when the door to the bar was opened. As Cullen and Petrucci entered, Olivieri's wife said, "Why did you do that, what the fuck did you bring him here for?" Cirillo, it appears, had been dating Olivieri's wife during the period of time when Olivieri was imprisoned on one of two prior felony convictions.

About two days after the killing, on or about March 9, 1982, Patricia Salargo, while present at a different bar, the Spirits Pub, in Queens, had a conversation with a man, who was subsequently identified by Sal Avilla as the defendant. The only description offered by Salargo was that the man was "a John Travolta type." After "about two" drinks, at the time when the bar was not crowded, with only six or seven people inside, a man sitting to her right asked for a cigarette and told her "he was depressed about breaking up with his girl friend and about his future was planned and he didn't feel so bad about breaking up with his fiancee as he did as having the boy that she was out with done away with or blown away * * *." Although she glanced in his direction, she was not "really paying that much attention" and was not good at faces.

Sal Avilla, a college graduate, who had majored in political science and who had known Salargo, having seen her on prior occasions, was also at the Spirits Pub. He positively identified defendant as the person with whom Salargo had been talking. Avilla had also spoken to defendant in the bar for 20 or 30 minutes prior to the time he observed Salargo conversing with him. From the transcript, it appears that Avilla knew the others who were in the Spirits Pub, but he did not know the defendant and the other man who entered the bar at the same time.

On April 13, 1982, Avilla appeared at the police precinct to view a photograph array. He positively identified defendant as the person he had observed in the Queens bar, talking with Salargo. At that time, he had no knowledge that there had been a killing. At a prior examination of photographs on March 23, 1982, he expressed some uncertainty as to whether it was defendant he had seen in the bar, although he selected Giuliano's photo from the array. Later, after defendant's arrest, Avilla did make a positive identification of Giuliano in a line-up. He also made a positive in-court identification of the defendant as the person he had observed with Salargo in the Spirits Pub, a significant fact overlooked by our dissenting colleague. While there was testimony by defendant's friends and relatives that, on March 9, 1982, appellant was playing cards at his father's home and, therefore, could not have been present in the Spirits Pub, the credibility of the witnesses who appeared at trial is more appropriately a matter for the jury. In addition, although Avilla testified that the meeting in the Queens bar occurred on March 9, which was a Tuesday, he had thought it occurred on a Monday and Salargo was uncertain whether the encounter took place on a Monday or a Tuesday.

The trial justice properly admitted the conversation overheard by the police between defendant and his father while appellant was being held at the police precinct. Detective Meda, who was doing paperwork at a desk some 15 feet from the holding pen, heard defendant tell his father in a loud voice, "If I ever find out who ratted me out, I will kill the guy," in response to which appellant's father said, "That is what you are here for because of your fucking temper." The statement, while not amounting to a confession, was a form of admission and, although recognized by the trial justice to be "the weakest form of evidence," does reflect some evidence of a consciousness of guilt. Appellant's statement was not hearsay, as suggested by the dissent, nor was there any objection to the testimony as to the father's response so as to preserve any issue for our review.

Similarly, it was for the trial justice to pass upon the credibility of the officers in terms of their having overheard the statement by defendant to his father. While they never made a notation of the conversation and never informed their superior officers, the assistant district attorney who responded to the arrest was advised of the content of the statement. In this regard, ADA Collazo testified at a hearing during the trial that he did not believe he was in a position to determine whether the statements could be used and directed the officer to speak to the deputy chief district attorney in charge of homicide grand jury, who the officer would be seeing in the morning. However, ADA Collazo had recorded the...