People v. Maerling

• Decision Date: 21 December 1978
• Citation: 413 N.Y.S.2d 316,385 N.E.2d 1245,46 N.Y.2d 289
• Parties: , 385 N.E.2d 1245 The PEOPLE of the State of New York, Respondent, v. William MAERLING, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 316

413 N.Y.S.2d 316

46 N.Y.2d 289, 385 N.E.2d 1245

The PEOPLE of the State of New York, Respondent, v. William MAERLING, Appellant.

Court of Appeals of New York.

Dec. 21, 1978.

Jane E. Berger and Pierce Gerety, Jr., New York City, for appellant.

Patrick Henry, Dist. Atty. (Joyce G. Friedman, Coram, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

On the night of April 14, 1972, two masked men forced their way into the Huntington, Suffolk County, home of Jerry Lo Basso, a reputed bookmaker. Besides Lo Basso, only his wife and his sister-in-law were present. Before leaving, the intruders ransacked the house, took possession of all the jewelry and cash they could lay their hands on, and, angered that the location of additional money in the house may not have been revealed, one of them killed Lo Basso by shooting him in the head. Mrs. Lo Basso, who also received a bullet wound and thereafter suffered a stroke and memory loss, was never able to testify as to these events.

For eight months, despite intensive investigation by over 100 police officers, no clues to the identity of the perpetrators were unearthed. The first lead came that December, when the police were informed that 19-year-old Anne Marie Paixao, who, along with one Tony Franciotti, her employer and lover, had been arrested and indicted on an unrelated kidnapping charge in both Queens and Nassau Counties, had knowledge of the Lo Basso murder. Detectives Rafferty and Rosenthal, in charge of the Lo Basso case for the Suffolk County police, then interviewed her.

As Rafferty was later to testify at trial, Anne Marie told him that, while pretending to be asleep in Franciotti's apartment during the early morning hours after the Lo Basso murder, she overheard a conversation among the defendant, William Maerling, Maerling's brother-in-law, Robert Ragonese, and Franciotti in the course of which Ragonese is supposed to have stated that he had shot "the old man", Maerling said he had shot "the old lady", and Franciotti mentioned that he had remained in a car outside the Lo Basso home after having told the other two only to "rob them" and "not to shoot anybody". Rafferty also related how Anne Marie went on to tell him that Franciotti gave her $25 the day after the robbery and that, though nothing was said about its source, when she had had occasion to ask for money several days earlier, he replied he did not have any, but planned to "rip off a bookie" in a few days.

The day after she was interviewed by Rafferty and Rosenthal, Anne Marie went to the Queen's District Attorney's office, told them about the information she had supplied and began plea negotiations on the kidnapping indictment. However, she never testified at any stage of the Lo Basso case. Some months after her disclosure and before there was occasion to call her to repeat her information on the stand, she committed suicide. Instead, at trial, Rafferty, over objection, was permitted to recite her revelations to him as a declaration against her penal and pecuniary interest.

Conversations between Anne Marie and her mother, Barbara Paixao, testified to by the mother, were also admitted into evidence on the same theory. According to Mrs. Paixao, at about the time of the murder, the daughter, in refusing the mother's request for $15, told her she would be able to comply in a few days since Franciotti was going to use a gun to make sure he collected money owed him by "a bookie on Long Island". The mother also swore that Anne Marie gave her the $15 that weekend; that, upon hearing of the murder and asking whether Franciotti had committed it, Anne Marie replied that he had not; that at about the time of Anne Marie's meeting with Rafferty, the daughter repeated to her mother the substance of the statements the detective described on the stand; that Anne Marie had also stated that she herself was not in trouble; and that, when Anne Marie would, as she at times did, mention the names of people involved in other criminal activities in which she or Franciotti participated, neither Maerling's nor Ragonese's name ever came up.

In any event, after the January 31 meeting between Anne Marie and Rafferty, things moved rapidly. Fifteen days later William Maerling and Robert Ragonese were arrested, and the next day the Grand Jury indicted Maerling, Ragonese and Franciotti for murder, burglary, and robbery.

On the day of his arrest, Maerling, who could neither read nor write, signed a statement which in substance was consistent with the information received from Anne Marie Paixao; the statement was in Rafferty's handwriting and witnessed only by him and Detective Rosenthal. Maerling later testified at a Huntley ¹ hearing that he was never informed of his Miranda ² rights, that the statement was false and that he affixed his signature after hours of coercion accompanied by beatings and threats. These claims, vigorously litigated by both sides, presented sharp issues of fact which the suppression court later resolved in favor of the People. The result was that the statement was ultimately received at trial.

Two weeks after his arrest, in the absence of counsel, who had been assigned to him sometime earlier, an oral statement, different in content from the first, but still inculpatory since it did place Maerling in the car outside the Lo Basso house, was taken from Maerling by Lieutenant Cannatella, a Suffolk County Jail officer, under circumstances hereinafter described. After hearing Cannatella and the defendant, the Trial Judge was to rule this statement voluntary and spontaneous and deny defendant's motion to suppress.

In October, 1973, Maerling's case was severed from the others and he was brought to trial alone. No identification evidence linked him to the crime. Neither Ragonese nor Franciotti testified. The People's case rested entirely on out-of-court statements: those of Anne Marie Paixao to Rafferty and to her mother, the one made the day of the arrest by Maerling to Rafferty, and the one taken from him in the county jail. It was on this evidence that he was found guilty on one count of each of the offenses charged and subsequently sentenced to 20 years to life on the murder conviction and to lesser terms to be served concurrently on the other charges. Six months after the Maerling sentence, the indictments against Ragonese and Franciotti were dismissed "in the interest of justice" after the District Attorney had filed an affirmation in which he stated that Anne Marie's death had made it impossible for the prosecution to establish a prima facie case. The Appellate Division has affirmed Maerling's judgment of conviction.

For the reasons which follow, we believe the judgment should be set aside and a new trial ordered. Though, in appropriate circumstances, declarations against penal interest may be admitted to incriminate an accused in a criminal case, on no reasonable view of the evidence were those of Anne Marie Paixao admissible. On the record here it was also reversible error to hold that defendant's jailhouse statement was made so spontaneously that the absence of counsel may be disregarded. ³

Turning immediately to the declaration against interest question, we begin our analysis by emphasizing that the admission of such evidence, as an exception to the hearsay rule, may be said to be dependent, as in general are all out-of-court statements offered to prove the truth of the matter they assert, on a satisfactory showing (1) that resort to such proof is necessary to the discovery of truth and (2) that the proffered evidence is reliable (McCormick, Law and the Future: Evidence, 51 Nev.L.Rev. 218, 219). Simply stated, in the case of declarations against interest, the theory is that such assurance flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest. Therefore, the reasoning goes, absent other motivations, when he does so, he is responding to a truth-revealing compulsion as great as that to which he would likely be subjected if cross-examined as a witness.

But, in New York, and in many other jurisdictions, for a long time a declaration that would subject the declarant to criminal, as distinguished from pecuniary or proprietary, liability did not suffice (see People v. Brown, 26 N.Y.2d 88, 91-93, 308 N.Y.S.2d 825, 826-828, 257 N.E.2d 16, 17-18). In Brown, however, we joined the growing trend favoring the admissibility of declarations against penal interest. ⁴ In that case, we held it reversible error to exclude a third party's self incriminating statement that tended to exculpate the defendant by supporting his affirmative defense of self-defense. In an uncomplicated illustration, the court suggested that "to receive proof that a man admitted he never had title to an Elgin watch, but not to receive proof that he had admitted striking Jones over the head with a club * * * does not readily withstand analysis" (26 N.Y.2d, at p. 91, 308 N.Y.S.2d, at p. 827, 257 N.E.2d, at p. 17).

But Brown did not deal with the admissibility of a declaration offered by the prosecution to incriminate a defendant. Offering few criteria as to how necessity and reliability are to be evaluated in the case of an exculpatory declaration, it offered none specifically attuned to an inculpatory one. On reliability, it confined itself to a statement that the declaration against penal interest must be material. As to necessity, it stated three circumstances in which there would be a satisfactory showing of the declarant's unavailability death, absence from the jurisdiction or invocation of the privilege against self incrimination (26 N.Y.2d, at p. 94, 308 N.Y.S.2d, at p. 829, 257 N.E.2d, at p. 19).

Today, confronting the question of the admissibility of an inculpatory declaration as Res nova (see, however, People v. Harding 37 N.Y.2d 130, 135, 371 N.Y.S.2d 493, 497, 332 N.E.2d 354, 357 (Cooke, J., concurring); People v. Cepeda, 61 A.D.2d 962, 403...