People v. Maschio

• Decision Date: 15 May 2014
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose A. MASCHIO, Appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 1234

986 N.Y.S.2d 252

2014 N.Y. Slip Op. 03551

The PEOPLE of the State of New York, Respondent,

v.Jose A. MASCHIO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

May 15, 2014.

R. Graham McNamara, Glenville, for appellant.

James E. Conboy, District Attorney, Fonda (Pamela A. Ladd of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, GARRY and EGAN Jr., JJ.

GARRY, J.

Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered September 1, 2010, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and reckless endangerment in the second degree.

In November 2009, two cars drove back and forth in front of a tavern in the City of Amsterdam, Montgomery County, while a person or persons therein fired multiple shots at the tavern and people standing outside. Witnesses reported that some of the shots were fired by a person wearing a distinctive yellow hat; defendant, who had been in the tavern wearing a yellow hat earlier that evening, was apprehended after the shooting, wearing a yellow hat and riding with codefendant Michael Bianca in a car that matched the description of one of the involved vehicles. Defendant and Bianca were thereafter indicted for various crimes. Following a joint jury trial, defendant was convicted of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree and reckless endangerment in the second degree.¹ Defendant was sentenced to an aggregate prison term of 12 years. He appeals, and we affirm.

We reject defendant's claim that the admission at trial of a statement given to police by Bianca violated defendant's right to confront witnesses and deprived him of a fair trial ( see generally Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 [2004] ). According to the statement, which had been redacted to remove references to defendant, Bianca and three other men went to the tavern earlier that evening and, following an altercation with other bar patrons, left together in Bianca's black Lexus. In the vehicle, there was “yelling back and forth” and discussion of obtaining a gun; Bianca allegedly told the others that he wanted nothing to do with such a plan, dropped off two of the men at their black car and then drove back to the tavern with the third man. As they approached the bar, a black vehicle allegedly came up behind Bianca's car. Bianca stated that he heard gunfire and attempted to drive away, but “somehow ended up back in the cross fire three more times before [he] took it upon [himself] to get [them] out of there.”

A defendant's right to confront witnesses is violated by the admission of “the facially incriminating confession of a nontestifying codefendant” ( Richardson v. Marsh, 481 U.S. 200, 207, 107 S.Ct. 1702, 95 L.Ed.2d 176 [1987];see generally Bruton v. United States, 391 U.S. 123, 135–136, 88 S.Ct. 1620, 20 L.Ed.2d 476 [1968] ); however, no such violation occurs where, as here, the codefendant's statement incriminates the defendant only in light of other evidence produced at trial ( see People v. Pagan, 87 A.D.3d 1181, 1184, 929 N.Y.S.2d 332 [2011],lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132 [2012];People v. Lewis, 83 A.D.3d 1206, 1208–1209, 920 N.Y.S.2d 846 [2011],lv. denied17 N.Y.3d 797, 929 N.Y.S.2d 105, 952 N.E.2d 1100 [2011] ). Nor did the use of plural pronouns such as “we” and “they” in the statement necessarily indicate any involvement by defendant, as the jury could have readily understood these as references to the other men that Bianca said were present ( see People v. Pagan, 87 A.D.3d at 1184–1185, 929 N.Y.S.2d 332;People v. Timberlake, 300 A.D.2d 219, 219–220, 752 N.Y.S.2d 315 [2002],lv. denied99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003] ). Accordingly, the statement was admissible, and defendant's rights under the Confrontation Clause were not violated by the People's arguments that drew inferences about his participation by linking the statement with other trial evidence ( see People v. Hernandez, 89 A.D.3d 1123, 1126, 931 N.Y.S.2d 780 [2011],lvs. denied20 N.Y.3d 1099, 965 N.Y.S.2d 795, 988 N.E.2d 533 [2013] ).

Defendant's convictions were not against the weight of the evidence. Witnesses testified that defendant—wearing the aforesaid yellow hat—was present in the tavern on the night of the shooting with Bianca and three other men, all of whom left in a black Lexus after a dispute with other customers. About half an hour later, shots were fired from two cars, one of which, according to witnesses, was a black Lexus driven by Bianca that contained a shooter in a yellow hat. Witnesses saw gunfire flashes coming from the Lexus, and people on the sidewalk returned...