People v. Perez
| Citation | 100 A.D.2d 366,474 N.Y.S.2d 767 |
| Parties | The PEOPLE, etc., Respondent, v. Angel PEREZ, Appellant. |
| Decision Date | 09 April 1984 |
| Court | New York Supreme Court Appellate Division |
Freda S. Nisnewitz, Brooklyn, for appellant.
Angel Perez, pro se.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Roseann B. MacKechnie and Sarah G. Noll, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.
Before GIBBONS, J.P., and BRACKEN, BROWN and NIEHOFF, JJ. NIEHOFF, Justice.
On September 16, 1977, the defendant Angel Perez, Antonio Calderone, Benedicto Muniz also known as Junior, and others were in an apartment located at 586 Crescent Street, Brooklyn, New York. The defendant Angel Perez took out a gun and demanded that Junior turn over his money. Junior ignored the demand and after the defendant fired a shot toward the apartment wall, Junior told him he should not play with guns. Calderone said "kill him". The defendant complied with this suggestion or direction and shot Junior in the chest. The defendant then took money out of Junior's hand and Calderone removed money from Junior's socks.
The above sequence of events took place in the presence of two eyewitnesses, Jose Marcano and Cecilia Matos who testified at trial. These eyewitnesses knew both the defendant and Calderone prior to the commission of the crime. The eyewitnesses, as well as Nydia Marcano and Iris Maldanado lived in the apartment where the crime occurred. In addition to the two eyewitnesses to the actual shooting, the People produced Nydia Marcano and Iris Maldonado, who heard the shots and came upon the crime scene moments later. Iris Maldonado was in an adjacent bathroom and Nydia Marcano entered from the hallway. Both Iris Maldonado and Nydia Marcano testified that as they entered the kitchen they observed the defendant holding a revolver and that Perez told them he would kill them if they did not shut up. The final prosecution witness (other than law enforcement personnel) was the decedent's father who was called primarily to explain that the money on his son's person was the proceeds of a settlement from a childhood accident.
Defendant was convicted of the crimes of murder in the second degree and manslaughter in the first degree. Manifestly, the proof of such crimes by defendant was overwhelming and none of the members of this court holds to the contrary. Quite apart from the sufficiency of the evidence argument, upon which ground defendant seeks a reversal of his conviction, defendant advances a number of claims of alleged error committed at the trial which he argues warrant a new trial and he asserts that the sentence of 25 years to life was excessive. The members of this court are divided on only one issue, namely, whether defendant was deprived of a fair trial by the Trial Judge's failure to direct the prosecutor to turn over to defense counsel the tape and transcript of one of two telephone conversations, to which the witness Nydia Marcano was a party, which conversations were made more than eight months after the murder of Junior Muniz.
The record reveals that on direct examination Nydia Marcano testified that she knew the defendant Perez for more than eight years because he had been living with her sister Suzanna Marcano who is also known as Clara. About 9:00 P.M. on the evening of the homicide, Nydia Marcano left her apartment. Once outside, she saw that it was raining and she returned to the apartment to fetch an umbrella. As she was going down the hallway Nydia heard two gun shots and when she re-entered the apartment she saw Perez with a gun in his hand, at which time he threatened her. Later on, Nydia Marcano went down to the stationhouse where she was questioned as to the events of the evening.
At the conclusion of her direct testimony, the prosecutor turned over to defense counsel a transcript of Nydia Marcano's Grand Jury testimony and the prior statement concerning the murder given by her to the District Attorney's office.
After cross-examination of the witness by Calderone's attorney, Perez' counsel started his cross-examination; but because of the lateness of the hour, the cross-examination was interrupted and the trial continued to the next morning.
The issue with respect to the transcripts of the tapes arose only because defense counsel had been informed by the defendant's family that Nydia had solicited the sum of $500 from defendant's family for not testifying in the case. On the second day of cross-examination, based upon what he had been told by his client's family, defense counsel cross-examined Nydia Marcano concerning the alleged "bribe" request. When counsel asked Nydia if she had called any member of her sister Suzanna's family to ask for money, Nydia responded "No". When defense counsel asked Nydia whether she had called Francesco Sememidey, defendant's stepson, and asked him to give her $200 she responded, to counsel's obvious surprise, that it was defendant's family that had come to her house and offered her money. When asked by defense counsel if she told "the District Attorney about that, that the offer of money?" Nydia replied "Yes". Defense counsel then asked Nydia: "About two weeks ago, did you call your sister, Suzanna, and tell her that you wanted $500 and you wouldn't show up in this court?", to which Nydia replied "I called her on the instructions of the District Attorney".
A bit later, defense counsel inquired, "Did you, about two weeks, make a phone call to Francesco Samaday [sic ] [defendant's stepson] at his factory and ask him for $500 so you didn't come to court?" Again, Nydia replied, "I called him on instructions of the District Attorney". When asked what she said to Francesco and Suzanna and whether taping was involved ("Were you wearing a tape * * * Did you have something on your body recording this?"), Nydia told defense counsel that she made the calls from the District Attorney's office, that taping was involved, and that she was told to act as if she were accepting the money. When asked what Francesco said to her Nydia replied "He said that he was going to speak to Kanno's [Perez'] brother, in order to take the money to me, to bring the money to me". Nydia's cross-examination on this point concluded with her stating that no meeting ever occurred and no money exchanged hands. Although defense counsel was thus made aware of the fact that there were at least two conversations and that they were taped, at no time during his cross-examination did defense counsel request production of the tapes and/or transcripts of the witness' telephone conversations with either Suzanna or Francesco.
On redirect examination, the prosecutor pursued the line of inquiry concerning the attempt by the defendant's brother to bribe Nydia. After the witness testified that there was a Detective Ramirez with her when she called from the District Attorney's office and that Suzanna had promised to contact the defendant's brother to get the money, the court, sua sponte, charged the jury as follows:
"THE COURT: Ladies and gentlemen of the Jury, there has been no evidence adduced that the defendant Perez himself was involved in this alleged offer of money".
The prosecutor then indicated that he had no objection to a limiting instruction to the jury that the questions concerning the bribe attempt dealt only with the credibility of this witness, and not to the guilt or innocence of the defendant. The court instructed the jury in the following language:
"THE COURT: That is all, it's to be considered with regard to, and that is solely on the issue of credibility, not proof or [sic ] innocence of this case, but only of credibility".
The prosecutor then concluded the examination of Nydia Marcano as follows:
Thus, even though defense counsel had possession of the four-page transcript of the conversation with Suzanna Marcano, who was Nydia's sister and defendant's wife, and knew that there had also been a taped conversation with defendant's stepson, defense counsel opted to forgo any recross-examination of the witness. While Nydia was on the stand, defense counsel never asked for the other transcript and never inquired as to whether there were any additional statements by Nydia so that he could pursue any further cross-examination of the witness. One can hardly quarrel with that strategy in view of the fact that when defense counsel sought to brand Nydia as the solicitor of a bribe she responded by informing him that she had not sought a bribe but that members of defendant's family had sought to bribe her; that she had reported the attempted bribe to the District Attorney who had instructed her to appear to play along; and that her conversations with the defendant's wife and stepson made on instructions from the District Attorney were taped in the presence of a detective and an Assistant District Attorney. Inasmuch as the District Attorney was...
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