People v. Malizia
| Decision Date | 08 March 1983 |
| Citation | 460 N.Y.S.2d 23,92 A.D.2d 154 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Richard MALIZIA, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Alan M. Dershowitz, New York City, of counsel (Nathan Z. Dershowitz, New York City, with him on the brief; Frank A. Lopez, Brooklyn, attorney), for defendant-appellant.
Bruce Allen, New York City, of counsel (Norman Barclay, New York City, with him on the brief; Robert M. Morgenthau, New York City, attorney), for respondent.
Before SANDLER, J.P., and CARRO, LYNCH and MILONAS, JJ.
The defendant was convicted after a jury trial of two counts of murder in the second degree (common law and felony murder), attempted murder in the second degree and assault in the first degree, and was sentenced to two concurrent terms of 25 years to life, and also to two concurrent terms of 8 1/3 to 25 years and 5 to 15 years, to be served consecutively to the life sentence.
Of the several issues presented on this appeal, the one that seems to us to merit extended analysis is raised by the contention that reversible error occurred when the trial court admitted into evidence a statement of the deceased on the evening of the homicide that he was going to see the defendant. This testimony was admitted by the trial court under the state of mind exception to the hearsay rule pursuant to principles that derive from the well-known decision of the United States Supreme Court in Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706. The governing principle allows, under appropriate circumstances, declarations of intention offered to show subsequent acts of declarant where the acts are relevant to a trial issue. The declarant's statement is permitted to show his existing intent, and from this intent the trier of fact is permitted to infer that the act was carried out.
Recognizing that the application of this principle in criminal cases to permit an inference with regard to an event that involves the conduct or cooperation of a person other than the declarant has been the subject of scholarly and judicial disagreement, that the issue has not previously been authoritatively addressed in this State, and that some scholarly opinion is opposed to such an application of the state of mind exception, we are nonetheless persuaded that the testimony in question was here properly admitted under the circumstances presented. We are also persuaded that if the admission of this testimony were error, the error would have been harmless since, wholly apart from the challenged statement, the totality of the evidence inescapably leads to the conclusion that the deceased had in fact intended to meet the defendant, and indeed did so.
The deceased, William Terrell, was a major drug dealer. His brother, Harry Terrell, the principal People's witness, was also a major drug dealer who worked from time to time in the deceased's drug selling operation. Sometime on the evening of December 18, 1978, at the apartment of the deceased's girlfriend, Brenda Beasley, also a witness for the People, the deceased asked his brother to go with him to meet Richy at 12:00 o'clock at the Pathmark. The deceased said that he had received some money from people who wanted to make a drug purchase, that he was going to see if Richy had any drugs, and that he also owed Richy some money and wanted to pay him. Harry Terrell understood the name Richy to be a reference to defendant, whom he knew as Richy Pontiac, and whom he had met on a number of occasions in the preceding two months, usually in the company of the deceased, and on several occasions near the Pathmark store located on 206th Street between Ninth and Tenth Avenue.
Shortly before midnight the two men left for the Pathmark in a car driven by Harry. In the car was a shoulder bag which contained bundles of money. The deceased told Harry that the bag contained the money that he owed the defendant. Harry drove to the intersection of Tenth Avenue and 206th Street, a two-way street, parking on the south side of 206th Street facing Ninth Avenue. The deceased left the vehicle with the bag and walked down the block to a blue Ford parked on the north side of the street near the corner of Ninth Avenue. Harry recognized the car as one that he had seen the defendant use on all but one of the prior occasions on which he had seen the defendant. The license plates disclosed it to be a rental car. The deceased entered the front of the blue Ford, emerging a few moments later without the bag, and told his brother to return to the Beasley apartment to secure more money.
Harry returned to the Beasley apartment and received from her another bag in which he again observed bundles of money. At 206th Street Harry parked his car in the same spot. The deceased appeared moments later, took the new bag, returned to the blue Ford and entered it.
Suddenly the Ford took off at a rapid pace, headlights off, in the direction of the car in which Harry was waiting. He heard a burst of noise, which sounded like firecrackers. As the car reached Harry's car he saw the defendant in the middle of the back seat pointing a gun directly at him. Harry dropped immediately to the floor as a burst of gunfire knocked out the windows of his car. In addition to the defendant, Harry also saw the driver, who, like the defendant, was a white man.
In the early morning of December 19, 1978, a State Trooper found the dead body of the deceased on the side of a northbound lane of the New York State Thruway, a series of bullet holes running from his back to his head. No bullets or bullet fragments were observed in the surrounding area.
The medical examiner testified that the deceased had died of multiple bullet wounds. Nine bullets had entered his body almost simultaneously, all from the back, and eight of them had travelled on a left-to-right track. An expert witness testified that the upward swing of the line of fire indicated that a single semi-automatic weapon had inflicted the wounds in a matter of seconds. An examination of the deceased's hat and coat disclosed 17 bullet holes, seven with gunshot residue around them, indicating that the gun had been fired eight to twelve inches from the holes.
From evidence found at the location of the car occupied by Harry Terrell on 206th Street, it was determined that thirteen bullets had been fired at the driver's side of the car, that nine had pierced the frame, that the path of the bullets suggested that they had been fired from a moving car, and that at least two automatic or semi-automatic weapons had been used in that attack.
At about 5:00 P.M. on December 19 the defendant and his brother, John Malizia, went to a Ford dealership in Spring Valley, New York, where they told the rental manager that a car rented by John over a period of several months, a 1979 blue Ford Granada, had been stolen the previous day. The two brothers explained that they had not reported the larceny of the car because each had thought that the other had the car. The police were unable to find the car.
Brenda Beasley testified that she had spoken on the telephone on several occasions to someone who had identified himself as Richy in the weeks prior to the homicide. She had twice accompanied the deceased to the area of the Pathmark. On each occasion the deceased had left her and had entered a rented blue Ford car. On one occasion, leaving the scene of the meeting, she had observed the defendant in the car.
In addition, there was testimony that the portion of the New York State Thruway where the body of the deceased was found was along the route that would be taken by a car proceeding from 206th Street to Monsey, New York, where the defendant's brother resided.
By any standard the evidence here summarized impressively and convincingly supported in every respect the jury's verdict. We find wholly without merit the defendant's contention that the proof was insufficient because no one had observed the defendant actually shooting the deceased. The defendant was seen within seconds after a burst of gunfire had killed the deceased, gun in hand, about to undertake the murder of Harry Terrell. He was identified by someone who had met him on a number of occasions and had...
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