People v. Lantigua

• Decision Date: 11 June 1996
• Citation: 643 N.Y.S.2d 963,228 A.D.2d 213
• Parties: The PEOPLE of the State of New York, Respondent, v. Milton LANTIGUA, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 963

643 N.Y.S.2d 963

228 A.D.2d 213

The PEOPLE of the State of New York, Respondent, v. Milton LANTIGUA, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

June 11, 1996.

Nancy D. Killian, for Respondent.

Jeffrey Cohn, for Defendant-Appellant.

Before MILONAS, J.P., and ROSENBERGER, ELLERIN, RUBIN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Joseph Mazur, J.), rendered August 13, 1993, convicting defendant, after jury trial, of murder in the second degree, and sentencing him to an indeterminate term of imprisonment of from 20 years to life, unanimously reversed, on the law, and the matter remitted to Supreme Court for a new trial.

In April 1992, a jury found defendant guilty of the murder of Felix Ayala, who was shot to death in front of 1520 Sheridan Avenue, Bronx County, shortly after 1:00 a.m. on the morning of June 27, 1990. An earlier trial, conducted in 1991, ended in a mistrial when the jurors were unable to agree on a verdict.

Apart from the testimony given by Frances Nunez Rosario, who lived in the building in front of which Mr. Ayala was killed, there is no evidence to connect defendant to the victim's death. All the other witnesses to the murder are in general agreement that a tall, thin, long-haired gunman fired at the victim at close range until his gun jammed. He then left the vicinity, returning a few minutes later to again shoot at the decedent as he lay on the ground. Frances Rosario is the only witness to place Milton Lantigua at the scene and the only one to assert that, after the gunman's weapon jammed, defendant fired at the victim. Her testimony commenced on Friday, April 3 and concluded on Monday, April 6, 1992. Still a teenager at the time of the incident, the evidence she gave was confusing, inarticulate, vague, frequently inaudible and extremely hesitant.

Ms. Rosario related that she was returning to her home from the grocery store, located at Sheridan Avenue and 172nd Street, where she had been speaking with a friend. As she walked towards her apartment house, she noticed people gathered in the front of the building. She saw "a light skin tall man--and the deceased. And I also noticed a heavy set light skin individual" (defendant). Asked where the heavy-set individual was standing, she replied, "In front of 1520 when you walking in to your left there was a door there, so there is some steps." (The prosecutor clarified that defendant was to her left as she went into the building.) Ms. Rosario said she did not know the victim, but later learned his nickname was "Felo". She stated that "the tall guy and Felo seem to be arguing." She then went up the two flights to her apartment, located on the third floor of the building: "To the room at the end of the hall."

The witness appeared extremely reluctant to state if anyone involved in the incident was present in the courtroom. Although asked to describe what happened next some seven times by both the prosecutor and the court, she failed to respond and was ultimately removed from the courtroom. After a recess, the prosecutor managed to elicit that the two men who were arguing "started to walk, and the deceased was shot by the tall individual who he was arguing with." Asked how many shots she heard, the witness replied, "Four." She then said, "I went inside" and "looked out of the window" which is located "right next to the one I was looking out. They both face the front." The witness then stated, "The tall light skin and the heavy set was there." Implored by both the prosecutor and the court to describe what happened (the same question was asked a total of eight times), Ms. Rosario failed to give a meaningful response. The court then adjourned the proceedings for the weekend.

When trial resumed on Monday, April 6, Ms. Rosario testified, "The tall light skin guy put his arm around the deceased." She stated, "I was looking out of the window. You could hear the gunshots, they were fast." In testimony that was largely inaudible and continually interrupted so that her answers could be read back, the witness stated that the victim fell to the ground. Asked what happened next, she said, "I went back to the room. I went back to the room." She proceeded to relate, haltingly, that a heavy-set man, about 5 feet 8 inches tall and 180 pounds, was "next to" the tall light-skinned man whose gun appeared to have jammed, "and the individual that was next to him went and then he shot at the body which was already lying there." Asked to describe any individual she had described who might be in the courtroom by the clothing he was wearing, the witness responded, "Purple slacks." At this point, the prosecutor interjected, "Indicating the defendant, Your Honor."

Defense counsel stated his objection and, at a sidebar conference, requested that the court declare a mistrial. The sufficiency of the identification and the source of the witness's reluctance to answer were discussed. The prosecutor stated, "the witness is very afraid and has been unable to look at the defendant inside of the courtroom as of yet." After hearing the arguments, the court concluded: "She can't see the pants. I can't see them. The identification is very weak. I suggest that you rehabilitate her because I am not going to declare a mistrial."

Upon resumption of the testimony, the witness was again asked to identify "the person you saw shooting the second time". After this question was posed, in various forms, some seven times without a response, the court again directed counsel to chambers for renewal of the motion for a mistrial. Defense counsel expressed his concerns to the court with respect to the source of the witness's trepidation, suggesting that "there is a good possibility she is being kept in custody and tremendous pressure is being put upon her."

After the court denied the motion for a mistrial, Ms. Rosario finally identified defendant, stating, "He is right there with the black blazer." She said that the second gunshots "weren't as fast as the first" and described the gun used as "smaller". She indicated that she had seen the heavy-set man on prior occasions, "Around the neighborhood." She did not talk to the police on the night of the shooting because she "was scared." When she stated that she next saw defendant "in the crowd downstairs", the prosecutor asked, "Is that why you were scared, Ms. Rosario?", drawing an immediate objection from defense counsel, which the court sustained. Following an off-the-record discussion, the witness recounted how, a month after the incident (July 23, 1990), she identified defendant to police as they drove around the neighborhood in an unmarked police van, at which time defendant was placed under arrest. On cross examination, she conceded that she had never been threatened by defendant (who was out on bail following the first trial), any member of his family or any of his friends.

Counsel next elicited from Ms. Rosario that she witnessed the shooting from her brother's bedroom window. Later in the course of his cross examination, the witness was asked if she had a room of her own, to which she responded, "I don't remember. I don't think so." Counsel then inquired who was with her when she witnessed the shooting, noting that she had repeatedly used the term "we" in her testimony before the Grand Jury. The witness responded, "I was probably nervous and I said 'we'. I was by myself."

The witness then testified that, at the time of the shooting, the tall, thin man, the victim and the third, heavy-set man all had their backs turned towards her so that she could not see the heavier man's face. After the shooting, "They ran towards the alley." The taller man returned "in a grayish van" and shot the victim again. The witness stated, "He came out from the back of the van and he shot him and the van took off" with the gunman inside. She acknowledged that defendant did not return to the scene with the taller man, and affirmed that she saw defendant in the crowd after the arrival of police. Defense counsel concluded his cross examination by eliciting that Ms. Rosario had been an inpatient at Bronx Lebanon Hospital after she "attempted suicide on two occasions" and that she is farsighted.

A number of other witnesses testified to the events of June 27, 1990, including defendant. While there are significant differences in the accounts--especially whether one or two persons were near the victim when he was first shot--the various witnesses agree that several shots were fired, followed by an interval of from one to five minutes, and then a second series of several more shots. The witnesses are also in complete accord that it was the tall, thin man who first fired at the victim and who returned, in either a van or station wagon, to shoot the victim several more times.

The police officer who responded to the report of shots fired stated that the victim was found lying on his left side towards the south end of the apartment building. The officer remained at the scene to voucher evidence and complete a request for ballistics analysis.

A New York City Medical Examiner testified that Felix Ayala sustained two gunshot wounds to the left side of the head, one to the left forearm and two to the back. One frontal wound to the forehead was a graze wound, but the second bullet entered the left cheek and passed into the victim's brain where it was recovered as copper-jacketed lead fragments. A third bullet passed through the left extremity of the left forearm. The upper wound to the back was caused by a bullet that passed through the heart and the left lung and exited the front of the chest. The lower back wound was the result of a bullet that passed towards the head, from right to left, penetrating the lung. This projectile did not exit the torso, and a deformed, unjacketed bullet (later identified to be from a .38 caliber round) was recovered from the victim's chest cavity. Blunt...