People v. Ortero
| Decision Date | 09 June 1980 |
| Citation | 428 N.Y.S.2d 965,75 A.D.2d 168 |
| Parties | The PEOPLE, etc., Respondent, v. Jose ORTERO, a/k/a Jose Otero, and Frank Naranjo, Appellants. |
| Court | New York Supreme Court — Appellate Division |
Louis A. Tirello, Spring Valley, for appellants.
John J. Santucci, Dist. Atty., Kew Gardens (Deborah Carlin Stevens, Kew Gardens, of counsel), for respondent.
Before MOLLEN, P. J., and LAZER, GIBBONS and MARGETT, JJ.
The defendants stand convicted of attempted murder in the second degree and criminal possession of a weapon in the second degree. The prosecution alleged that, acting in concert, they shot Oscar Roldan as he lay in a hospital bed in Booth Memorial Hospital. Roldan, who survived the attack, did not testify at trial. However, another patient at the hospital identified defendant Ortero as Roldan's assailant, and a maintenance worker identified both defendants as the men he had seen running out a back door of the hospital on the day of the crime.
The defendants offered an alibi placing them both at their attorney's office when the crime was committed. The alibi was supported at trial by the testimony of an employee of the attorney, the employee's wife, and two other witnesses.
Prior to trial, defendant Naranjo applied for a ruling pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, to limit the scope of potential cross-examination in the event he testified. His counsel addressed the court as follows:
Noting that he had previously consented to a similar application by the codefendant, the District Attorney said:
"I will consent to this charge also, so there need be no further discussion on the point."
At trial, the prosecution called a special agent of the Bureau of Alcohol, Tobacco and Firearms who had participated in Naranjo's arrest. The agent testified that when Naranjo was arrested, he gave a false name and misrepresented his place of birth. The prosecutor then offered for identification a form apparently entitled "Statement of Rights and Waiver of Rights", which Naranjo had signed using a false name. Defense counsel objected and, at a sidebar conference, protested that he had been told by the District Attorney that Naranjo had made no statements to law enforcement officials. Counsel asserted that he had never been furnished with a copy of the "Statement of Rights and Waiver of Rights", and he asked that the form itself be suppressed. The prosecutor replied as follows:
(Emphasis supplied.)
The court overruled the objection and held the form admissible as "pedigree material."
Defendant Naranjo subsequently testified in his own behalf. On cross-examination he was confronted with serious allegations of misconduct which had not been addressed in the pretrial Sandoval application. At the outset, he was vigorously questioned concerning his entry into and departure from the United States. When defense counsel's objection "to this whole line" of questioning was overruled, Naranjo acknowledged that he had illegally entered the country using an altered passport. Defense counsel thereupon requested a sidebar conference, and the record reveals the following exchange:
The prosecutor then pressed his inquiry by eliciting from Naranjo that he had forged certain documents to facilitate his departure from the United States, and had later re-entered the country illegally. Naranjo's cross-examination concluded as follows:
Out of the hearing of the jury, the court asked the prosecutor to state the factual basis for the questions he had just asked. The prosecutor replied that he had relied on "a composite of various information," including communications with a Colonel Isaza of Colombia, newspaper reports, a "rap-sheet" from two Colombian cities, and unspecified data provided by Inter-Pol.
In summation, the prosecutor made the following remarks which were objected to as indicated:
The jury subsequently convicted both defendants of attempted murder in the second degree and criminal...
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