People v. Jackson

Decision Date12 June 1992
Citation154 Misc.2d 718,593 N.Y.S.2d 410
PartiesThe PEOPLE of the State of New York v. Erick JACKSON a/k/a Eric Knight, Defendant.
CourtNew York Supreme Court

Robert G. Sullivan of Sullivan & Liapakis, P.C., New York City, for defendant, Erick Jackson.

JOSEPH SLAVIN, Justice.

On December 1, 1980 a jury convicted Defendant of Arson in the Second Degree and 6 Counts of Felony Murder stemming from the Arson. Defendant was sentenced on March 2, 1981. This conviction was affirmed.

In 1988, the Defendant moved to vacate his conviction on the grounds that exculpatory material was withheld from the defense and ineffective assistance of counsel. Prior to the commencement of the hearing herein, the Court informed the parties that consideration would be given to any possible Rosario violation (People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881). During the course of the initial hearings I determined that there was a Rosario violation and vacated the judgment. While my initial order was affirmed, the Court of Appeals remanded the matter for further proceedings. 78 N.Y.2d 638, 578 N.Y.S.2d 483, 585 N.E.2d 795. Additional hearings were conducted.

In determining this motion, this Court had considered the motion papers, the various reports, numerous affirmations and replies, memoranda of law by all parties, the testimony at the hearing, the exhibits and the trial testimony.

TRIAL

At trial it was established that between 8:20 and 8:30 a.m. on August 2, 1978, a fire was observed in the men's room of Waldbaums Supermarket, above the grocery area. Numerous witnesses testified that they did not observe any fire beneath the stairway.

As a result of the fire, six firemen were killed.

The evidence linking Defendant to the fire was his alleged "confession" to Julio Cruz, Detective Harold J. Harmon and former Assistant District Attorney Michael Gary. The "confession" stated that defendant and two others climbed up to the roof of the Waldbaums Supermarket (T-475--It is, however, unknown what was used to enable them to climb to the roof). 1

Once on the roof, defendant and his companions made holes in the roof and threw paper doused with lighter fluid through the holes. It is not clear whether the paper was lit when thrown through the holes or whether the papers were thrown through the holes unlit and an object to ignite the paper was then thrown. After the fire was going well, defendant and his companions left for Coney Island. The confession alleged that the throwing of the paper with lighter fluid occurred late evening or early morning. The evidence established that this would have been around 5:30 through 6:00 a.m. in August of 1978 (T-475). Defendant also stated that he had received $1,500 or $500 in order to set fire to the Waldbaums.

Defense strategy was to show through the People's witnesses that the confession was inaccurate as to time of the fire and the place where the fire had occurred. Defense also attempted to show that the confession did not refer to a fire at the Waldbaums but to a fire approximately a year earlier at a Royal Farms store. Defense strategy was to rely solely on the witnesses produced by the People.

Besides the confession the People were required to prove that the fire was "Arson".

Former Fire Marshal Charles King testified that based upon his investigation he had found four separate points of origin of the fires. Three points of origin were underneath the stairway and one point of origin was in the men's room (T-246). The three fires underneath the stairway were clearly deliberately set. Fire Marshal King concluded that where there exists different points of origin of the fires, this would prove that all fires were deliberately set (T-230).

According to Fire Marshal King, the men's room fire was found almost immediately after the fire was put out (T-281 through 282). 2

Nonetheless, it was Fire Marshal King's opinion that the fire in the men's room could not have come from the roof as defendant's alleged admission stated (T-274, T-318--320). It was the Fire Marshal's opinion that it was impossible for this to have been a "drop fire". The burn marks, according to Fire Marshal King, indicated that the fire burned upwards, and had there been a "drop fire", the marks would have indicated a downward burn.

Detective Harold Dugan testified that the fire commenced in the cock-loft above the men's room (T-360-361). It was Detective Dugan's expert opinion, that there had been a "reverse chimney effect".

Dugan believed that due to air currents in the building the fire had started above the men's room, fell on a beam therein and started to burn downward, but after reaching a certain point on the beam, began to burn upwards. Detective Dugan did not express, nor was he asked to express an opinion, as to whether the fire was accidental or deliberate.

During summation, the People argued there was no testimony that the fire was accidental (T-640). The Prosecutor urged the Jury to adopt Detective Dugan's theory of a "reverse chimney effect". He argued that the witnesses that had seen the fire all testified of seeing it burn five feet above the men's room floor and not as Fire Marshal King opined, at the base of the beam (T-650).

Further, the Assistant District Attorney argued that there was evidence supporting Dugan's "reverse chimney effect" from Exhibit 20 and Lieut. Nielson's description of the fire as he encountered it. It was argued that Lieut. Nielson had stated that the fire was moving laterally, which was consistent with Dugan's air current theory (T-652).

Defense counsel urged the Jury to believe Fire Marshal King's opinion that the fire could not have dropped from the roof and was started at the base of the beam in the men's room. Defense argued that Fire Marshal King had worked at the scene of the fire for two to three weeks sifting through the evidence. He urged that Detective Dugan only viewed photographs and was a "windbag" (T-620) or a "con man" (T-623). He urged the Jury not to credit Dugan's testimony.

It is interesting to note that the Court was never asked, nor did it charge the Jury as to the corroboration requirements of a confession.

The Jury convicted the defendant of all the charges. Defendant appealed his conviction and the Appellate Division affirmed without an opinion (103 A.D.2d 1047, 479 N.Y.S.2d 390). The Court of Appeals also affirmed on the basis that the People have proven their case beyond a reasonable doubt, even though the expert testimony was contradictory (65 N.Y.2d 265, 491 N.Y.S.2d 138, 480 N.E.2d 727).

HEARING

The hearing on Defendant's motion commenced in 1988. In the middle of the hearing there was discovered a document considered Rosario material, which had not been disclosed to the defense. The Court ruled a per se violation of law required vacatur of the conviction without a showing of prejudice (142 Misc.2d 853, 538 N.Y.S.2d 677). The Appellate Division affirmed this Court's decision (162 A.D.2d 470, 556 N.Y.S.2d 165). The Court of Appeals, in a 4 to 3 decision, reversed and held that a per se Rosario rule did not apply to post-conviction post-final appeal motions (78 N.Y.2d 638, 578 N.Y.S.2d 483, 585 N.E.2d 795). The case was remanded to this Court for continuation of the hearing.

The Court finds the testimony of former Detective Dugan totally credible, and the testimony of a former Assistant District Attorney who conducted the first stages of the investigation and a present Assistant District Attorney, evasive and disingenuous. All other witnesses were candid and honest. Based upon the credible evidence the Court makes the following findings of fact:

1. Throughout this investigation, Detective Dugan was of the expert opinion that the fire had been caused by an electrical short in the cock-loft (H-515, H-655). 3

In order to establish a basis for his opinion, Detective Dugan conducted various experiments which had been videotaped, as well as requesting documentation regarding the electrical make-up of the store and the construction site. Defense counsel was never informed of Dugan's opinion that the fire was not arson but electrical.

2. Detective Dugan was of the opinion that the three fires underneath the stairway were set after the fire had been extinguished (H-498). It was Dugan's opinion that the fire beneath the stairway had been set by the Fire Department in order to benefit the families of the deceased fire personnel. While defense counsel knew that the Police Department believed that the Fire Department had planted certain evidence of arson, he did not know that it was Detective Dugan who had made such an accusation. Indeed, a memorandum prepared by Assistant District Attorney Weinger merely states that the Police Department accused the Fire Department of setting the fire (page 2 of memo). In People v. Young, 79 N.Y.2d 365, 582 N.Y.S.2d 977, 591 N.E.2d 1163, the Court held that although Defendant knew the information he did not know the information was from the witness. This was a Rosario violation (page 369-370, 582 N.Y.S.2d 977, 591 N.E.2d 1163).

3. Detective Dugan told various prosecutors of his opinion that the fire was not arson but accidental and that he believed that the Fire Department had set the fires underneath the stairway. This Court makes this finding based upon the credible testimony of Detective Dugan as well as the following:

a) A former Assistant District Attorney, when first asked whether Detective Dugan had ever told him that the fires had been accidental responded, "he told me that some fires were accidental, that he could say." (H-713.)

While the former Assistant District Attorney later sought to retract this testimony, the Court credits his initial testimony, made without prompting. Further,...

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