People v. Liccione

• Citation: 407 N.Y.S.2d 753,63 A.D.2d 305
• Parties: PEOPLE of the State of New York, Respondent, v. Anthony LICCIONE, Appellant.
• Decision Date: 13 July 1978
• Court: New York Supreme Court Appellate Division

Page 753

407 N.Y.S.2d 753

63 A.D.2d 305

PEOPLE of the State of New York, Respondent, v. Anthony LICCIONE, Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 13, 1978.

John R. Parrinello, Rochester, for appellant.

Lawrence T. Kurlander, Dist. Atty., Rochester, for respondent (Melvin Bressler, Rochester, of counsel).

Before MARSH, P. J., and MOULE, SIMONS, DILLON and WITMER, JJ.

SIMONS, Justice.

Defendant has been convicted of murder second degree arising from the death of his wife, Mary Liccione. He was not present when she was attacked and fatally stabbed, but before she died Mrs. Liccione told witnesses that defendant had hired her assailant to kill her. Defendant's conviction rests substantially upon her dying declarations and upon his admissions to the police and although urging several points on this appeal, the primary grounds urged for reversal concern the Trial Court's denial of his motions to suppress this evidence.

In the early morning of June 16, 1975, defendant left his downstairs apartment at 755 Jay Street, Rochester, for work. Later, about 8:30 a. m., his children left home for school. Mrs. Liccione was not feeling well that morning and after the children left she locked the storm door on a rear entryway to the kitchen and the kitchen door and returned to bed. The living room furniture had been pushed against the front door by her husband the night before and the only remaining door to the apartment, other than the kitchen door, was not usable. About 5 minutes after she returned to bed, Mrs. Liccione heard a key turning in the kitchen doors. She went into the dining room to investigate and found a black man standing there with a rifle. She attempted to take the rifle away from him and during the ensuing struggle the man fired the rifle three times before dropping it. Mrs. Liccione tried to escape by breaking through a screened window but her assailant stabbed her several times before she did so. Neighbors, alerted by her screams and by the rifle shots, ran to the Liccione house and found Mrs. Liccione in the driveway below the broken window screen. When they told her that they would call her husband she protested, "No, that nigger told me he paid him, he paid", "he made the nigger do this to me", "that nigger told me my husband told him to do this to me", "help me I am going to die", "that nigger told me my husband told him to do this", "he met the guy at work, they planned it at work", "I am going to die, don't let my husband have the kids". Later that evening she repeated similar statements to her parents and the police at the hospital.

When Mrs. Liccione was examined by a doctor at the hospital, he discovered multiple stab wounds on her neck, shoulders, back and chest. She had lost a tremendous amount of blood and was in deep shock. The doctor was unable to obtain a blood pressure and in his opinion, Mrs. Liccione was dying. She remained hospitalized until she died from the stab wounds on June 24, 1975.

The police arrived at the Liccione apartment at about 8:45 a. m., shortly before decedent was removed to the hospital. Upon entering they discovered two keys on the living room floor and a rifle in the sitting room. The keys fit the storm door and the kitchen door at the rear entrance to the apartment. The rifle held nine rounds of ammunition and when found it contained six unfired cartridges. Three spent bullet casings were recovered in the apartment. There was blood on the rifle and on the window through which Mrs. Liccione exited. The murder weapon was never found.

Defendant was notified of the incident at his job and he returned home to be met by Detectives Trotto, Gangemi and Perticone at the driveway to his apartment house. He was told then for the first time that his wife had been assaulted. When questioned, defendant stated that he owned a .22 caliber rifle which he normally kept in the garage with a box of shells but he stated that he had moved the rifle and shells to a camper parked in the driveway a few days earlier to keep them away from his children. Defendant stated that he had the only keys to the garage and camper and when asked how the children could gain access to the garage if he had the only key, he did not answer. The police asked defendant to see the rifle but defendant was unable to locate his key to the camper. Eventually the police discovered it was unlocked. Defendant could not find the rifle or shells in the vehicle and when shown the rifle found in the apartment, he identified it as his but stated that he had no idea how it got from the camper to the house.

Defendant also identified the keys found in the living room as his. He stated that the keys were left on a window ledge outside the kitchen door in the shed between the storm door and the kitchen door so that his wife and children could use them to get into the house. When asked why he left the key to the storm door on a window sill inside the shed and behind the storm door, defendant answered that he never locked the storm door. He further explained that the furniture was pushed against the front door of the apartment because he was painting the living room. Defendant was then asked to go to the Public Safety Building for further questioning and he agreed to do so. After he left, his children returned home and they were asked whether keys were ever left on the window sill for them. They answered no. The police investigated the window sill and testified that it appeared dusty and undisturbed as if nothing had been placed on it for a long time and that the sill was about five feet above the floor, too high for defendant's six-year old child to reach.

The police found no evidence indicating that the purpose of the entry was theft. On the contrary, a woman's purse was plainly visible in the dining room but undisturbed.

The jury also heard evidence of long-standing marital difficulties between defendant and his wife. Mrs. Liccione's mother testified that defendant had threatened to kill her daughter earlier in June and there was evidence that after his wife's death defendant told the mother in the presence of other witnesses, "I made a mistake. I should have killed you first." There was evidence of the defendant's activities at work the morning of the attack from which the jury was asked to infer that he had attempted to establish an alibi for the time of the killing. And, finally, there was evidence that the black man seen running from the premises shortly after the assault had been seen in the neighborhood before the day of the assault and that he returned to the apartment about 10 days after it.

As a result of the killing, defendant and Fred A. Watson were indicted for murder second degree. The defendant was tried separately and convicted as charged.

I

Initially, defendant challenges the sufficiency of the indictment. It charged that defendant and Fred A. Watson, in violation of sections 20.00 and 125.25 of the Penal Law, committed the crime of murder in the second degree in that "the defendants, on or about June 16, 1975 in the County of Monroe, State of New York with intent to cause the death of another person, to wit, Mary Luccione (sic) caused the death of such person by inflicting multiple stab wounds in and upon her body." It is defendant's contention that this indictment does not comply with Criminal Procedure Law, § 200.50(7) requiring that the indictment assert facts supporting every element of the offense charged, i. e., it does not assert facts apprising the defendant that he was charged with accessorial conduct in soliciting, aiding or abetting Watson, the active wrongdoer, in committing the crime. The statute does not require such particularity, however, and that information may be obtained, as it was in this case, by way of bill of particulars. The indictment advised defendant that he was charged with murder under sections 125.25 and 20.00 and under established rules, not changed by the new Criminal Procedure Law, it was not necessary to charge the language or substance of section 20 in the indictment. It is familiar law that a person aiding and abetting another in committing a crime is guilty as a principal and may be indicted as such although the proof establishes that he was an abettor (People v. Katz, 209 N.Y. 311, 325-326, 103 N.E. 305, 309; People v. Bliven, 112 N.Y. 79, 92, 19 N.E. 638, 644; People v. Henry, 18 A.D.2d 293, 296, 239 N.Y.S.2d 146, 149). The indictment gave defendant knowledge of the charges sufficient to enable him to prepare his defense and to prevent a second indictment against him for the same offense and it was, therefore, legally sufficient (People v. Corbalis, 178 N.Y. 516, 519-520, 71 N.E. 106, 107; see also, People v. Armlin, 6 N.Y.2d 231, 234, 189 N.Y.S.2d 179, 181, 160 N.E.2d 478, 480).

II

Defendant moved to suppress statements made to the police (a) at his home on the morning of the murder, June 16, 1975, because he was not given the Miranda warnings before interrogation, (b) at the Public Safety Building later that day after the police read the Miranda warnings to him, and (c) statements made to police officers on various occasions after June 16. He also moved to suppress the evidence of a box of rifle shells seized without a warrant from his garage while he was at the Public Safety Building on the afternoon of June 16. The court suppressed the statements made after June 16 but held that the defendant was not in custody when he was questioned at his home on the morning of the assault and that he was properly advised of his rights and that he knowingly and voluntarily waived them before the questioning at the Public Safety Building. It refused to suppress the box of rifle shells. The issues are largely factual and we concur in the Trial Court's findings (see People v. Leonti, 18 N.Y.2d 384, 390, 275 N.Y.S. 825, 830, 222 N.E.2d 591, 594).

Defendant returned to his home from work about 9:30 a. m. There were several marked...