People v. Quartararo

• Decision Date: 31 May 1994
• Citation: 612 N.Y.S.2d 635,200 A.D.2d 160
• Parties: The PEOPLE, etc., Respondent, v. Michael QUARTARARO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 635

612 N.Y.S.2d 635

200 A.D.2d 160

The PEOPLE, etc., Respondent, v. Michael QUARTARARO, Appellant.

Supreme Court, Appellate Division,

Second Department.

May 31, 1994.

Michael Quartararo, pro se.

James A. Cohen, New York City (Joanne Cicala, Jack Dennehy and Kevin Puvalowski, on the brief), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Mark D. Cohen, Steven A. Hovani, Patricia A. Murphy, Glenn Green, and Patricia M. Filberto, of counsel), for respondent.

Before BRACKEN, J.P., and JOY, HART and FRIEDMANN, JJ.

BRACKEN, Justice Presiding.

In a criminal case, a change of venue will be warranted as a matter of due process (U.S. Const., 14th Amend.; N.Y. Const., art. I, § 6), when it is proved that the assembly of an impartial jury in the venue to which a transfer is sought is possible, whereas the assembly of an impartial jury in the original venue is not. The propriety of this remedy does not hinge solely on proof of the extent to which the original venue has been saturated with pretrial publicity. Instead, the propriety of this remedy hinges on proof of the extent to which, as between the original venue and the venue to which a transfer is sought, significantly different levels of "saturation" have been reached, thus rendering the selection of a fair jury impossible in the one place and possible in the other. Considering all the relevant factors, we conclude that the defendant has failed to show his entitlement to the extraordinary remedy of having his trial moved from Suffolk County.

The defendant Michael Quartararo is one of four individuals who took part in the 1979 murder of 13-year-old John Pius. He was found guilty of murder in the second degree (two counts) after a trial in 1981 and this conviction was affirmed on appeal (see, People v. Quartararo, 113 A.D.2d 845, 493 N.Y.S.2d 511). In 1988, while the defendant was serving the sentence imposed in 1981, the United States District Court for the Eastern District of New York granted a petition for a writ of habeas corpus and directed that the defendant be released from prison unless a new trial were to be commenced within 90 days (see, Quartararo v. Fogg, 679 F.Supp. 212, aff'd, 2nd Cir., 849 F.2d 1467). The defendant was given his second trial in 1990, and, at the conclusion of this trial, he was convicted of murder in the second degree under Penal Law § 125.25(1). We again affirm.

The defendant's primary argument is that it was impossible for him to receive a fair trial in Suffolk County. In advancing this argument, the defendant asserts that 95% of the original pool of prospective jurors had some knowledge of the Pius case and that only 37.7% of the original venirepersons with knowledge indicated that they could be fair. He also states that even after 100 potential jurors who had some knowledge of the Pius case had been excused by the trial court, a majority of those with knowledge of the case who remained in the pool (94 out of 181, or 52%) "expressed a disqualifying prejudice". The defendant also emphasizes that out of the 12 jurors and two alternates ultimately selected, only two knew nothing about the Pius case and five knew that the defendant was being retried.

The People respond to this argument by asserting that "seated jurors with prior knowledge gave the court sworn assurances that they could put aside any previously obtained information and decide the case on the facts presented at trial". The People claim that, with the exception of juror number two, "any actual knowledge of the sworn jurors was limited to awareness of very general information". For the following reasons, we agree that the defendant was not deprived of his right to an impartial jury (see, U.S. Const., 6th, 14th Amends.; see also, N.Y. Const. Art. I, §§ 2, 6).

As a preliminary matter, we must consider what effect, if any, this court's prior order denying the defendant's motion for a change of venue (see, CPL 230.20[2] has on the scope of our power to review the defendant's argument that it was impossible for him to receive a fair trial in Suffolk County. The factual predicate upon which the defendant bases this argument is essentially no different from that upon which he based his prior motion for a change of venue, and so the doctrine of "the law of the case" is potentially implicated (see, People v. Brown, 136 A.D.2d 1, 12, 525 N.Y.S.2d 618; People v. Knapp, 113 A.D.2d 154, 495 N.Y.S.2d 985). In order to avoid the consequences which strict application of this doctrine might have, the defendant notes that "the entire record of voir dire is now before this Court for the first time". The People suggest that it was the defendant's responsibility to have the minutes of voir dire supplied to this court at the time of his earlier motion.

Under these circumstances, we conclude that review of the merits of the defendant's contention is warranted. Whatever effect the doctrine of law of the case might have on our power to review the merits of the defendant's contention, we do not believe that this doctrine would ever compel us to arrive at a conclusion, on the merits, which we ourselves thought was manifestly erroneous (see, e.g., People v. Martinez, 194 A.D.2d 741, 741-742, 600 N.Y.S.2d 250, citing People v. Barnes 155 A.D.2d 468, 547 N.Y.S.2d 131; People v. Taylor, 87 A.D.2d 771, 450 N.Y.S.2d 370, aff'd 57 N.Y.2d 729, 454 N.Y.S.2d 976, 440 N.E.2d 1323; see also, People v. Williams, 188 A.D.2d 573, 591 N.Y.S.2d 467; People v. Claudio, 130 A.D.2d 759, 515 N.Y.S.2d 845). In the context of the present case, the question of the extent to which the doctrine of the law of the case is an "absolute mandate" (cf., People v. Williams, supra, 188 A.D.2d at 574, 591 N.Y.S.2d 467) is at any rate essentially academic. This is so because we conclude, on the merits, that this court's earlier refusal to grant the defendant's motion to change venue was not erroneous, "manifestly" or otherwise (cf., People v. Brown, supra), but was instead wholly correct, whether judged against the record that was before the court at that time or judged against the present record on appeal.

None of the statistics cited by the defendant on appeal is sufficient to destroy the presumption that prospective jurors are capable of putting aside whatever preconceptions they might initially have as the result of external influences and of deciding the case strictly in accordance with the trial court's instructions and in accordance with the evidence (see, e.g., Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589; Beck v. Washington, 369 U.S. 541, 555-558, 82 S.Ct. 955, 963-964, 8 L.Ed.2d 98; Irvin v. Dowd, 366 U.S. 717, 722-723, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751; Reynolds v. United States, 98 U.S. 145, 155-156, 25 L.Ed. 244; People v. Moore, 42 N.Y.2d 421, 432, 397 N.Y.S.2d 975, 366 N.E.2d 1330; People v. Genovese, 10 N.Y.2d 478, 482, 225 N.Y.S.2d 26, 180 N.E.2d 419; People v. Parnes, 161 A.D.2d 615, 555 N.Y.S.2d 396; People v. McClary, 150 A.D.2d 631, 541 N.Y.S.2d 503; People v. Sims, 110 A.D.2d 214, 225, 494 N.Y.S.2d 114; People v. Costello, 104 A.D.2d 947, 948, 480 N.Y.S.2d 565; People v. Harris, 84 A.D.2d 63, 100-101, 445 N.Y.S.2d 520, aff'd 57 N.Y.2d 335, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803). The defendant's trial was not presumptively unfair, either because 95% of the prospective jurors had heard of the Pius case or because the Pius case was familiar to 10 out of the 12 jurors ultimately selected. Also, the fact that approximately two-thirds of the original jury expressed what the defendant describes as a "disqualifying prejudice" does not, in and of itself, warrant the conclusion that the defendant could not receive a fair trial in Suffolk County.

The case which provides us with the most unmistakable guidepost is Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847. The Patton case, supra resembles the present case in that it involved a lengthy chronology, extending for four years, from the time of the defendant's crime in 1966 until the time of the defendant's second trial in 1970. Like the present case, Patton v. Yount supra involved a defendant who had been convicted at his first trial, at which time he had unsuccessfully asserted an insanity defense, and who had later obtained a reversal on appeal based on what a lay-person might regard as a "technicality" (see, Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464, cert. denied 397 U.S. 925, 90 S.Ct. 918, 25 L.Ed.2d 104). The pretrial publicity in Patton included front-page and "banner headline" coverage of the 1966 homicide, the 1969 reversal on appeal, and the subsequent change of venue motion; these reports were disseminated by two local newspapers in a county with a population of 70,000 people. In Patton v. Yount, supra, 467 U.S. at 1029, 104 S.Ct. at 2887, almost 100% of the original venirepersons (161 out of 163) had heard of the case. Notwithstanding the presence of these circumstances, the Supreme Court held that the defendant had not been deprived of his Sixth Amendment right to an impartial jury (see, U.S. Const., 6th, 14th Amends).

In Patton v. Yount, supra, the Supreme Court attached great significance to the fact that several years had elapsed between the time of the defendant's crime and the time of the defendant's second trial. "That time soothes and erases is a perfectly natural phenomenon", the court stated at one point, adding that "[t]he passage of time is a great healer" (Patton v. Yount, supra at 1034, 104 S.Ct. at 2890, quoting Irvin v. Dowd, 7th Cir., 271 F.2d 552, 561 [Duffy, J. dissenting], revd 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751). We ourselves have stated in connection with the appeal of another Pius defendant that the passage of time "permit[ted] local passion and prejudice to cool" (People v. Ryan, 93 A.D.2d 848, 849, 461 N.Y.S.2d 344). In one of our several "Brinks case" decisions (People v. Boudin, 90...