People v. Hansen
| Decision Date | 17 January 2002 |
| Docket Number | 11599,3 |
| Parties | This opinion reflects changes made by the Court on |
| Court | New York Supreme Court Appellate Division |
Paul J. Connolly, Albany, for appellant.
Paul A. Clyne, District Attorney (Christopher D. Horn of counsel), Albany, for respondent.
Before: Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ.
Appeal from a judgment of the County Court of Albany County (Rosen, J.), rendered September 27, 1999, upon a verdict convicting defendant of the crimes of murder in the first degree and robbery in the first degree.
On April 28, 1995, David Goyette, a cab driver in the City of Albany, was struck in the back of his head with a hammer and robbed. On August 1, 1996, the body of Santo Cassaro, shot once in the back of his head, was found inside his cab in front of 686 Morris Street in the City of Albany. A.25 caliber shell casing was found in the cab. After an informant implicated defendant in both crimes, Albany Police Detectives went to 499 Third Street in the City of Albany and located defendant who accompanied them to the police station. During questioning, defendant made oral and written statements implicating himself in the robbery and homicide of Cassaro. Later, pursuant to a search warrant, the police recovered a.25 caliber handgun from the attic space at 499 Third Street and Cassaro's wallet from the trash at the curb.
Defendant was indicted with murder in the first degree, three counts of murder in the second degree and robbery in the first degree, stemming from the incidents involving Cassaro. A sixth count charged robbery in the first degree based upon the incident involving Goyette. In November 1996, the People filed notice of their intention to seek the death penalty. Prior to trial, County Court granted defendant's motion to sever the sixth count of the indictment and defendant pleaded guilty to that count. On May 13, 1999, the People withdrew their notice of intention to seek the death penalty. Thereafter, on June 16, 1999, new counsel was properly substituted for the Capital Defender Office (see, Judiciary Law § 35-b [11]; County Law art 18-B) since defendant was no longer facing the death penalty.
Defendant moved to suppress his oral and written statements, the.25 caliber handgun and to dismiss the indictment. After County Court denied the motions, defendant, following a jury trial, was found guilty of murder in the first degree and robbery in the first degree. Thereafter, County Court sentenced defendant to 5 to 15 years' imprisonment upon his plea to the sixth count of the indictment. As a result of his murder in the first degree conviction, defendant was sentenced to life in prison without the possibility of parole. The court determined that such sentence would run consecutively to the term of imprisonment imposed under the sixth count. Upon his conviction for robbery in the first degree, defendant was sentenced to 12 to 25 years' imprisonment to be served concurrently with his life without parole sentence.
Defendant's initial argument is that County Court erred in denying his motion to dismiss the indictment pursuant to CPL 210.35 (5) because the Grand Jury proceeding was "defective" (see, CPL 210.20 [1] [c]) in three respects. First, he alleges that the prosecutor should have disclosed his accomplice's cooperation agreement to the Grand Jury. Second, he argues that the People impaired the integrity of the Grand Jury by presenting evidence of the Goyette robbery without instruction that it was not to be considered as evidence of defendant's predisposition to commit the Cassaro robbery/homicide. Third, he contends that perjured testimony given by Melissa Davis impaired the integrity of the Grand Jury.
Turning to defendant's first argument for dismissal, Davis, defendant's then 15-year-old accomplice and girlfriend, testified before the Grand Jury as to the events surrounding Cassaro's death. She indicated that on August 1, 1996, defendant told her that he wanted to rob a cab to get money to pay a drug dealer. He was armed with a.25 caliber handgun belonging to Davis's mother. Davis agreed to defendant's request that she call a company to send a cab to 686 Morris Street. She indicated that after that call was made, defendant told her that when the cab arrived they would get in, he would shoot the driver, and she would take his wallet. Davis stated that when Cassaro's taxi arrived, defendant entered the cab before her and seated himself in the backseat. As she entered the front seat, defendant shot Cassaro in the head and told her to grab his wallet. She did so and the two fled the scene netting the sum of $2.
Prior to her testimony, Davis executed a written waiver of immunity before the Grand Jury. The prosecutor did not inform the Grand Jurors that, in exchange for Davis's testimony, she would only be charged with robbery. He did indicate that he had some "discussions as to what charges would be proposed to * * * the Grand Jury * * * in connection with [her] testimony". We note that "[d]ismissal of an indictment under CPL 210.35 (5) is an 'exceptional' remedy" (People v Landtiser, 222 A.D.2d 525, 526-527; see, People v Darby, 75 N.Y.2d 449, 455), which is only warranted "where the integrity of the Grand Jury proceeding is impaired and prejudice to the defendant may result" (People v Talley, 273 A.D.2d 883, 883, lv denied 95 N.Y.2d 893; see, CPL 210.20 [1] [c]; 210.35 [5]; People v Huston, 88 N.Y.2d 400, 409). A Grand Jury proceeding will not be invalidated when a prosecutor withholds information which does not "'* * * materially influence the Grand Jury investigation * * *'" (People v Landtiser, supra, at 527, quoting People v Bartolomeo, 126 A.D.2d 375, 395, lv denied 70 N.Y.2d 702). Here, the evidence withheld pertained to Davis's credibility, a collateral issue to the basic one which the Grand Jury had to decide, namely, whether there was "legally sufficient evidence that a crime [had been] committed and reasonable cause to believe that * * * defendant committed it" (People v Kaba, 177 A.D.2d 506, 507, lv denied 79 N.Y.2d 859). The information omitted was not essential to the Grand Jury's responsibility to determine whether a prima facie case existed (see, People v Calbud, Inc., 49 N.Y.2d 389, 396) and, therefore, did not materially affect the Grand Jury's investigation. Accordingly, we find defendant failed to satisfy the "impairment of integrity" test (see, CPL 210.35 [5]; People v Darby, supra, at 455).
Next, we find that the People's presentation of evidence of the Goyette robbery without a limiting instruction did not prejudice defendant in light of the remaining evidence presented to the Grand Jury (see, People v Talley, supra, at 883; People v Rivas, 260 A.D.2d 583, 584, lv denied 93 N.Y.2d 1025). Finally, defendant argues that Davis presented perjured testimony which impaired the integrity of the Grand Jury. The allegation of perjury is based on the affidavit of an intern at the Capital Defender Office who interviewed Davis two years after her Grand Jury testimony. The intern recounted that Davis advised her, contrary to her Grand Jury testimony, that defendant never expressed the intention of killing Cassaro and she did not see whether Cassaro's arm was raised at the time of the shooting.(FN1) We agree with County Court that this hearsay evidence provided no basis for it to speculate that Davis's testimony was perjurious (see, People v Goetz, 68 N.Y.2d 96, 117). We note the absence of any proof in the record that the prosecutor knowingly used perjured testimony (see, People v Hutson, 157 A.D.2d 574, 574, lv denied 75 N.Y.2d 967). Moreover, Davis' testimony was not the only evidence submitted of defendant's intent to kill (see, People v Goetz, supra, at 117). The testimony of the People's firearm expert established that the gun was a semiautomatic weapon that could not be fired without first being cocked, that it functioned properly and that it required 7 pounds of pressure on the trigger in order to fire, a "relatively heavy" trigger pull. In our view, County Court properly denied defendant's motion to dismiss the indictment.
Defendant next argues that County Court erred by denying his motion to suppress his statements and the.25 caliber handgun seized at 499 Third Street. Initially, we note that the People conceded defendant's standing to object to the entry into and seizure of the handgun from that location. Defendant contends that his statements and the physical evidence should be suppressed as products of an unlawful warrantless entry under the Fourth and Fourteenth Amendments to the US Constitution, as well as under NY Constitution, article I, § 12. Additionally, in his supplemental pro se brief, defendant alleges, for the first time on appeal, that he was arrested and handcuffed at 499 Third Street. Therefore, he should have been given his Miranda warnings at that time. He also alleges that his statements were involuntarily obtained after physical abuse inflicted by the detectives.
Evidence adduced at the suppression hearing revealed that 499 Third Street is a two-family house occupied entirely by the Davis family. The front entrance of the residence is accessed through a screen door and then a wooden door which opens into a common hallway. Davis's mother described the hallway as "a public hallway, open to anyone who wants to walk in off the street". Inside the hallway, stairs lead to a second floor apartment flat which was converted to a front bedroom for Davis. On August 1, 1996, the police detectives entered the residence through the closed, unlocked screen door and passed through the open interior door. They knocked on the first-floor door and a male resident informed them that defendant was upstairs. They proceeded to...
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