People v. Mancuso

• Decision Date: 16 August 1988
• Citation: 141 Misc.2d 382,532 N.Y.S.2d 643
• Parties: The PEOPLE of the State of N.Y. v. Al MANCUSO, Defendant.
• Court: New York Supreme Court

Page 643

532 N.Y.S.2d 643

141 Misc.2d 382

The PEOPLE of the State of N.Y. v. Al MANCUSO, Defendant.

Supreme Court, Criminal Term Kings County, Part 21.

Aug. 16, 1988.

Alfred Mancuso, Stormville, pro se.

ANNE E. FELDMAN, Judge.

In June of 1978, defendant--appearing pro se--was convicted after trial as the shooter in the felony murder of one James Coppola, and sentenced to imprisonment for a term of 25 years to life; Ronnie Spagna, a co-defendant, was also convicted and sentenced to a lesser term.

This pro se motion made pursuant to CPL § 440.10, is one in a series of appeals and writ applications defendant has made in both state and federal courts subsequent to his sentence.

After a careful review of the extensive material submitted ¹ this court finds no necessity for holding an evidentiary hearing and denies the motion.

Although defendant raises a variety of issues, only two merit discussion: (1) the prosecution's failure to provide defendant with Brady and/or Rosario material; (2) newly discovered evidence consisting of an affidavit by Ronnie Spagna, exonerating defendant.

In support of his first claim, defendant contends that at trial the prosecution deliberately withheld information about a 1976 special prosecutor's investigation into misconduct charges prosecution witness had made against Detective Fahy, a detective assigned to investigate the Coppola murder. He argues that conversations taped during the course of that investigation contained Brady information and statements by a prosecution trial witness concerning the crime, which should have been furnished to defendant as Rosario material.

The prosecution maintains on several grounds that defendant was not entitled to material from these conversations: (1) as the product of an ongoing confidential investigation, they constituted privileged information; (2) the tapes of the conversations were neither in the possession or control of the District Attorney's office at the time of trial; (3) the tapes contained neither Brady nor Rosario material or even if they did, the prosecution's failure to furnish them at trial does not warrant vacating the judgment ten years later.

This court rejects the district attorney's argument that because the taped conversations focused on charges of police corruption, they constituted privileged confidential communications, exempt from Brady and Rosario requirements. Without jeopardizing confidentiality, the tapes could have been redacted and only those portions relevant to this case provided to defendants at trial. ²

To determine whether the tapes contained disclosable information, this court has listened to them in camera. ³ They consisted of conversations between a detective working with the special prosecutor's office and Carl Vaccarino, at that time a sentenced New Jersey prisoner, who later testified at defendant's trial to having heard defendant admit his culpability in the shooting. During these lengthy telephone calls Carl employed a variety of approaches aimed at persuading New York law enforcement authorities to help him obtain either release on bail pending his appeal from the New Jersey sentence or a reduction of that sentence in return for his 'cooperation'.

In this context he conveyed certain 'information' to the detective, claiming it came from his brother Domenick, who was subsequently indicted as a co-perpetrator in the felony-murder and who also testified against defendant in return for favorable treatment for himself. Carl said that Domenick had learned from a member of the Cappola family that Detective Fahy was receiving a substantial salary from the decedent's family and was therefore delaying making an arrest in the case, presumably in order to extend the term of his 'employment'. These allegations were found groundless. Carl also relayed what he claimed was his brother Domenick's description of the guns Spagna and defendant used and the role defendant had played in Cappola's homicide.

Defendant claims the Vaccarino brothers' false accusations against Detective Fahy constitutes Brady material because it indicates their willingness to make baseless allegations, rendering their testimony against him similarly suspect.

Assuming arguendo that this information would have been admissible as impeachment evidence against the Vaccarinos at defendant's trial, the prosecution's failure to provide defendant with it does not warrant the extreme remedy sought here. Failure to furnish Brady material leads to a new trial only if the court finds that had it been available to the jury a different verdict would have been likely ( United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). Carl Vaccarino's telephone 'revelations' are not of that nature. The trial record shows that both defendant and Spagna's attorney had available (and used) a significant amount of other impeachment evidence for challenging the Vaccarino's credibility. ⁴ Any additional material Carl's telephone comments might have provided would have been merely cumulative and not likely to have led the jury to reach a different verdict.

The prosecutor's claim that the non-disclosed material does not fall within the Rosario rule is rejected: while Carl's recital of what Domenick told him is hearsay as to Domenick, it does constitute Rosario material vis-a-vis Carl. However, contrary to defendant's contention, the district attorney's failure to provide him with the small amount of Rosario material buried in the taped conversations was the product of an understandab oversight. The trial record shows that the district attorney was aware of the Vaccarinos' allegations of widespread police corruption but viewed them as both privileged and irrelevant to this trial. Accordingly, as is apparent from the record, the trial assistant did not review the tapes and was unaware that in the course of one conversation Carl made statements relating to the subject matter of his testimony which should have been provided to defendant.

Although on first impression the per se rule articulated in People v. Perez, 65 N.Y.2d 154, 490 N.Y.S.2d 747, 480 N.E.2d 361 (1985) appears to mandate that defendant's motion be granted, I conclude that in the absence of demonstrated prejudice to the defendant, the appellate courts of this State did not contemplate so belated an application of the per se rule to the type of Rosario violation involved here. In each case where the Court of Appeals has applied the Perez doctrine, the question of the prosecutor's failure to supply Rosario material was raised on direct appeal. Each case was decided by the court within a year or two after conviction, thus enabling the prosecutor to re-try the case with a minimum of hardship.

In People v. Novoa, 70 N.Y.2d 490, 522 N.Y.S.2d 504, 517 N.E.2d 219 (1987) where the Court of Appeals did grant a § 440.10 motion based on the prosecution's inadvertent failure to provide Rosario material, the defendant's direct appeal of his conviction and his appeal...