People v. Hansen, 11599

• Court: New York Supreme Court Appellate Division
• Parties: This opinion reflects changes made by the Court on
• Docket Number: 11599,3
• Decision Date: 17 January 2002

This opinion reflects changes made by the Court on February 27, 2002.
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v
KRISTIAN HANSEN, Appellant.

11599

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

Calendar Date: October 10, 2001
Decided and Entered: January 17, 2002

Paul J. Connolly, Albany, for appellant.

Paul A. Clyne, District Attorney (Christopher D. Horn of counsel), Albany, for respondent.

OPINION AND ORDER

Before: Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ.

Cardona, P.J.

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...