People v. Ozarowski

• Decision Date: 06 January 1976
• Parties: , 344 N.E.2d 370 The PEOPLE of the State of New York, Respondent, v. Thomas OZAROWSKI et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 438

381 N.Y.S.2d 438

38 N.Y.2d 481, 344 N.E.2d 370

The PEOPLE of the State of New York, Respondent, v. Thomas OZAROWSKI et al., Appellants.

Court of Appeals of New York.

Jan. 6, 1976.

Morton N. Wekstein and Stephen J. Schwartz, Bronxville, for Thomas Ozarowski, Martin Miller, Marc Zakarin and Roger Santavicca, appellants.

Dante S. Alberi, Mount Vernon, for Philip Benenati, appellant.

J. Radley Herold, White Plains, for Thomas O'Neill, appellant.

James J. Duggan, White Plains, for Russell DePasquale, appellant.

Carl A. Vergari, Dist. Atty. (Janet Cunard, White Plains, of counsel), for respondent.

FUCHSBERG, Judge.

These seven defendants, Thomas Ozarowski, Russell DePasquale, Martin Miller, Marc Zakarin, Philip Benenati, Roger Santavicca, and Thomas O'Neill, ¹ were all convicted of conspiracy in the third degree (Penal Law, § 105.05) for their joint participation in an act of violence which resulted in extraordinarily severe injury to their victim. Upon the basis of the conspiracy conviction, they were also convicted of two counts of assault in the second degree (Penal Law, § 120.05, subds. 1, 2), three counts of possession of a dangerous weapon (Penal Law, § 265.05, subd. 9, renum. § 25.01, subd. (2); L.1974, ch. 1041, § 3) and one count of criminal trespass in the third degree (Penal Law, § 140.10). All seven defendants were sentenced as youthful offenders (CPL art. 720). Benenati and Zakarin were given probationary terms; Ozarowski, Miller, O'Neill, DePasquale and Santavicca received reformatory sentences of indeterminate length.

Among the contentions defendants raise on appeal is the assertion that the requisite specific intent to commit secon assault was not proved against each of them. In that regard, they urge that the finding of such intent made by the trial court, in this nonjury trial, was based on uncorroborated accomplice testimony and on postconspiracy statements which should not have been admitted against all defendants.

We affirm all the convictions for the reasons which follow.

In setting them out, it will be useful to outline the skein of events leading up to the assault. On March 1 and 2 of 1971, Russell DePasquale and Chester Ozarowski, the latter not a defendant in this case, were involved in separate altercations with different employees of Nathan's, a fast-food restaurant located in the City of Yonkers. Each had been threatened by an employee with a bared knife or similar weapon; DePasquale had thrown a garbage can at his assailant in order to make good his escape. The evidence further indicated that there existed some sort of feud between the day shift at Nathan's and a combination of young men of which Chester Ozarowski and Russell DePasquale were a part.

On the evening of March 2, members of this group gathered at the home of defendant Miller to discuss these incidents. DePasquale was present, but Chester Ozarowski was not. His brother, defendant Thomas Ozarowski, was there. Two witnesses, Joseph Artanis and Arlette Travalini, later testified that all of the defendants who are parties to this appeal were present in the apartment, save Santavicca. Artanis was an accomplice witness; Arlette was not.

Arlette, Artanis and other witnesses swore that all the six defendants present at Miller's apartment left there to go to Nathan's. In the lobby of the apartment house, they met Chester Ozarowski and two others, Gerard Fitzpatrick and Thomas Capasso. Arlette described how, while they were still in the lobby, Zakarin took a baseball bat from beneath his coat and handed it to Miller. Artanis testified that there were several baseball bats lying on a sofa in the room in Miller's apartment itself when the decision to go to Nathan's was made. Other witnesses, whose testimony is in substance undisputed, saw bats in the possession of various defendants that night.

They headed for Nathan's in three cars. Santavicca was picked up en route by prearrangement. Arlette was dropped off at her home. When some of the defendants arrived at the planned meeting spot in a parking lot near Nathan's it was discovered that one of the cars had not arrived. Some of t defendants returned to check on the missing car; eventually all arrived at the appointed place. Their movements were coordinate.

Testimony as to what occurred after they reached Nathan's is less clear. Miller apparently entered Nathan's to provoke an incident; he ordered pizza, accepted it, and then ran out without paying for it. Nathan's employees did not respond with either violence or threatened violence. An employee of Nathan's so testified. Fitzpatrick, Benenati, and Capasso apparently went to a candy store nearby, found it closed, and then sat or stood near a wall from which they could see the garbage area behind Nathan's.

At about that time, Artanis saw Selim Rabadi, an employee of Nathan's night shift not known to defendants, exit from the rear of the restaurant pushing a garbarge cart, saw Chester Ozarowski emerge from the garbage bin holding something behind his back, and then saw Chester swing a bat at Rabadi's head. The only evidence of motivation for this act is the events already described.

Rabadi, as a result of that blow, which fractured his skull, is paralyzed on one side of his body and has lost his vision, much of his hearing, control over his bodily functions, and, to some extent, control over his emotional behavior. Nevertheless, he was able to take the stand, his doctor having testified that, within limits he was capable of giving accurate testimony. Rabadi's description of the attack was somewhat different from that of Artanis. He recalled that, before blacking out, a group of youths beat him from behind while one of them held him by the neck in front. His story fits with that told by defendant O'Neill.

O'Neill, who gave statements to the police favoring the prosecution, was called by the People at a preliminary hearing, during the course of which he changed his story drastically, characterizing his earlier statements as lies told to the police out of fear. On the other hand, at the trial itself, on cross-examination, his story, while still restrained, reverted to some of its original version. For instance, he there testified that, in the apartment, Thomas Ozarowski had stated that his brother Chester was planning to go to Nathan's to 'talk' to the employee who had assailed him, that Thomas had expressed the desire to go with Chester as he expected trouble, and that the entire group then indicated its desire to go with Chester for the same reason. O'Neill further testified tha once the group had reached Nathan's, he and most of the others went straight to a garbage bin in the rear of the restaurant and hid there until Rabadi arrived to dump garbage, when he, O'Neill, arose from the bin behind the others, who were also leaving it as Rabadi retreated. He heard a thud, saw the body, and ran.

Indeed, all of the defendants fled from the shopping center after the incident. Although an eyewitness, one John O'Mara, could not identify them individually, he saw the group flight. Some of the defendants later denied to police that they had ever left Miller's apartment that evening, but others of them made detailed statements, which led police to the locations where three baseball bats had been discarded. In addition, Santavicca told a school friend, Dennis De Lango, the next day, that 'We think we killed a Spic last night'. De Lango, who was not otherwise involved, so testified and thus, by evidence admissible against Santavicca (People v. Peller, 291 N.Y. 438, 443, 52 N.E.2d 939, 940; People v. Gioia, 286 App.Div. 528, 145 N.Y.S.2d 495), provided the necessary corroboration for the accomplice testimony as to the role of Santavicca, who was the only defendant to have joined the others after they left the apartment. ²

The rapid, continuous and related sequence of events on the night of the assault, the planful character of the group action, the immediacy with which their response followed the initial altercations, the fact that these were discussed at the meeting from which the adventure at Nathan's took off, the fact that the defendants armed themselves with baseball bats in the expectation that their foes would use deadly knives, and the En masse nature of their deployment at Nathan's were all telling circumstances which illuminated the events of the night of March 2. On the basis of all this proof it is, therefore, not surprising that the Trial Judge found the conclusion inescapable that there was a common plan or scheme hatched in Miller's apartment that evening and that overt acts in furtherance of it took place (Penal Law, §§ 105.05, 105.20).

Accordingly, the more troubling question is not whether there was a conspiracy, but rather, what its goal was, for, in order to support a conviction of conspiracy in the third degre that goal must have been a felony (Penal Law, § 105.05). In that connection, the defendants assert that, at most, the evidence falls short of proving the element of intent required for conviction of felonious assault, arguing that the proof supports only the existence of an agreement to go to Nathan's to provoke a 'fair fight' and that the baseball bats were taken along to be used in self-defense and only if opponents used knives as weapons. The difficulty with that argument is twofold. First, its emphasis on the form rather than the substance of the agreement between the defendants, does not alter its essentially factual character, whose determination adversely to defendants now stands affirmed by the Appellate Division. Second, the claim that the bats were taken along only for self-defense, a matter subject too to assessment for credibility, ignores subdivision 1 of section 35.15 of the Penal Law, which limits such a defense to situations in which defendants do not act as provocateurs.

However, that still leaves open the determination of whether the specific intent proved here supported...