People v. Muccia

• Decision Date: 28 April 1988
• Citation: 527 N.Y.S.2d 620,139 A.D.2d 838
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel MUCCIA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 620

527 N.Y.S.2d 620

139 A.D.2d 838

The PEOPLE of the State of New York, Respondent, v. Daniel MUCCIA, Appellant.

Supreme Court, Appellate Division,

Third Department.

April 28, 1988.

Robert D. Cook, Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Lamb, of counsel), Kingston, for respondent.

Before CASEY, J.P., and YESAWICH, LEVINE, HARVEY and MERCURE, JJ.

CASEY, Justice Presiding.

Appeal from a judgment of the County Court of Ulster County (Fromer, J.), rendered April 5, 1985, upon a verdict convicting defendant of the crimes of murder in the second degree and grand larceny in the third degree.

On two prior occasions, this court reversed defendant's convictions stemming from the same facts which underlie this appeal. The details of the crimes are set forth in People v. Downs, 77 A.D.2d 740, 431 N.Y.S.2d 197, a case involving codefendant Wendell Downs, and in People v. Muccia, 83 A.D.2d 687, 442 N.Y.S.2d 362. Downs and defendant were first tried jointly in 1978, and each was convicted of one count of common-law murder and one count of felony murder for the shooting death of Edward Cuzzi in the course of an argument over the quality of cocaine he allegedly sold them. This court reversed defendant's conviction (People v. Muccia, supra ) because his inculpatory statements were obtained in violation of the rule of People v. Samuels, 49 N.Y.2d 218, 424 N.Y.S.2d 892, 400 N.E.2d 1344. Downs' conviction was affirmed (People v. Downs, supra ).

After defendant was reindicted and convicted of murder in the second degree and grand larceny in the third degree, his conviction was again reversed by this court (101 A.D.2d 930, 475 N.Y.S.2d 931), this time because of County Court's improper and prejudicial definition of "accomplice". At a hearing held prior to the retrial which underlies this appeal, Downs stood mute and refused to testify despite a threat of contempt by the court. Over defendant's objection, County Court ruled that Downs was, therefore, unavailable as a witness and that his testimony given at the joint trial in 1978 could be read to the jury by an investigator from the District Attorney's office. At that pretrial hearing, defense counsel requested that the jury be instructed that no inference could be drawn from defendant's failure to testify. This request was not then ruled on by County Court. However, the court denied defendant's motion to (1) exclude defendant's work boots, which were stained with human blood, (2) dismiss both counts of the indictment for insufficiency, and (3) suppress defendant's statement for impeachment purposes. Following the presentation of the People's case, defendant called no witnesses, but introduced hospital records revealing that Downs was suicidal and paranoid. In his summation, the prosecutor referred to defendant and Downs as "accomplices" and "murderers" and pointed out the consistencies in Downs' statement to the police and his 1978 trial testimony, except for his statement to the police that he knew that Cuzzi's murder would happen.

County Court charged the jury that Downs was an accomplice as a matter of law, requiring corroboration of his testimony as read and that the jury could consider on the issue of corroboration the finding of Cuzzi's body as Downs had described it, the cocaine and bus ticket found on Cuzzi, the bloody evidence in defendant's car and testimony of a bar maid and defendant's girlfriend. Defendant objected to the charge as given. Defendant was convicted as charged and sentenced to concurrent prison terms of 25 years to life for murder in the second degree and 1 1/3 to 4 years for grand larceny in the third degree.

On this appeal, defendant argues that the use of Downs' prior testimony was error. We disagree. A traditional hearsay exception for prior testimony of an unavailable witness ( see, Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255) is codified in CPL 670.10, which relevantly provides that the testimony of a witness at trial is admissible at a subsequent related proceeding which the witness is unable to attend because of "incapacity". Downs' refusal to testify constituted incapacity because County Court made sufficient good-faith efforts, including a threat to cite Downs for contempt, in order to induce him to testify in person ( see, Mason v. United States, 408 F.2d 903 (10th Cir.), cert. denied 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441). Furthermore, the direct examination and cross-examination of Downs at the prior trial was not unduly or improperly restricted in any way ( People v. Lyons, 129 Misc.2d 648, 493 N.Y.S.2d 722). In these circumstances, Downs' testimony was properly received.

Additionally, we find that the testimony of Downs as offered was sufficiently corroborated pursuant to CPL 60.22(1). The requisite corroboration is independent material evidence which, considered...