People v. Rivera

• Decision Date: 09 February 1995
• Citation: 84 N.Y.2d 766,646 N.E.2d 1098,622 N.Y.S.2d 671
• Parties: , 646 N.E.2d 1098 The PEOPLE of the State of New York, Respondent, v. Jose RIVERA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 671

622 N.Y.S.2d 671

84 N.Y.2d 766, 646 N.E.2d 1098

The PEOPLE of the State of New York, Respondent, v. Jose RIVERA, Appellant.

Court of Appeals of New York.

Argued Jan. 12, 1995.

Decided Feb. 9, 1995.

[84 N.Y.2d 767] Frances A. Gallagher, New York City and Philip L. Weinstein, for appellant.

Charles J. Hynes, Dist. Atty., Kings County, Brooklyn (Anthea H. Bruffee and Roseann B. MacKechnie, of counsel), for respondent.

OPINION OF THE COURT

SMITH, Judge.

The principal issue here is whether the trial court erred in permitting the prosecution to pursue an accessorial liability theory at trial and in charging the jury on that theory where the indictment charged defendant only as the principal actor. We hold that charge was proper and affirm the order of the Appellate Division.

Defendant was convicted, after a jury trial, of manslaughter in the first degree in the shooting death of William Daniels. The Grand Jury voted an indictment charging defendant with murder in the second degree and criminal possession of a weapon in the second and third degrees, making no mention of accomplices and focusing solely on defendant's conduct. The testimony before the Grand Jury was that defendant, Daniels and several other individuals were in defendant's apartment and that defendant and Daniels were having a verbal disagreement. One shot rang out, after which Daniels was observed standing face to face with defendant. Daniels, looking directly at defendant who was holding a gun, exclaimed, "You shot me." Thereafter, Daniels fell to the floor and was removed from the apartment by defendant and the other individuals.

The Grand Jury was charged to return a count of second degree murder if it found credible and legally sufficient evidence that defendant, with intent to cause the death of Daniels, shot him and caused his death. Additionally, the Grand Jury was charged to return counts charging defendant with second and third degree criminal possession of a weapon as a principal if there was credible and legally sufficient evidence of possession.

Prior to trial, the People moved to amend the indictment to add the theory of acting-in-concert to each of the indicted crimes. This motion was denied. The court, however, granted a pretrial adjournment to investigate further the acting-in-concert evidence the People intended to establish. The trial court permitted the prosecution, over defendant's objection, to present evidence tending to establish that defendant did act in concert and the court further charged the jury on accessorial liability.

The Appellate Division affirmed the judgment, stating, "Although the indictment did not charge the defendant with accessorial liability, the trial court properly permitted proof that tended to establish that the defendant acted in concert with others in the victim's shooting" (198 A.D.2d 529, 530, 604 N.Y.S.2d 190 [citations omitted]. Quoting this Court's decision in People v. Duncan, 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572 that "[t]here is no distinction between liability as a principal and criminal culpability as an accessory and the status for which the defendant is convicted has no bearing upon the theory of the prosecution," the Appellate Division determined that the People provided sufficient notice to defendant before trial of their intention to offer evidence establishing that he was an accomplice to the shooting, that defendant was given an opportunity to prepare his defense and that the admission of evidence of accessorial liability was proper.

Defendant argues that he was denied his constitutional right to be tried only on those charges determined by the Grand Jury to be appropriate and that he did not receive fair notice of the charges against him. The People argue that prosecutors have traditionally been allowed to introduce proof of acting-in-concert where the only charge is as a principal and that the defendant had adequate notice of the People's intent to offer evidence of acting-in-concert.

I.

Initially, we note that "[n]o person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury" (N.Y. Const. art. I, § 6; see also, CPL 210.05). Such person should be clearly apprised of the conduct which is the subject of the accusation (id.; see also, CPL 200.50). The three primary functions of the indictment are (1) to provide "the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense," (2) to "provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence" and (3) to indicate "just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes" (People v. Iannone, 45 N.Y.2d 589, 594-595, 412 N.Y.S.2d 110, 384 N.E.2d 656; see also, Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050-1051, 8 L.Ed.2d 240).

Traditionally, it has been permissible to charge and admit evidence convicting a defendant as an accessory where an indictment charges only conduct as a principal (People v. Bliven, 112 N.Y. 79, 19 N.E. 638). Whether a defendant is charged as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution (People v. Duncan, 46 N.Y.2d 74, 412 N.Y.S.2d 833, 385 N.E.2d 572, supra). An indictment charging a defendant as a principal is not unlawfully amended by the admission of proof and instruction to the jury that a defendant is additionally charged with acting-in-concert to commit the same crime, nor does it impermissibly broaden a defendant's basis of liability, as there is no legal distinction between liability as a principal or criminal culpability as an accomplice (id., at 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572). When the defendant was indicted as a principal and evidence was admitted and the jury charged that defendant could be convicted either as a principal or an accomplice, no new theory of culpability was introduced into the case. The court's instruction on acting-in-concert did not charge "a substantive crime not appearing in the indictment or amend[ ] the indictment to charge additional criminal acts or crimes" (People v. Wilczynski, 7 Misc.2d 307, 308, 412 N.Y.S.2d 239, affd. 65 A.D.2d 518, 409 N.Y.S.2d 325, cert. denied439 U.S. 1128, 99 S.Ct. 1047, 59 L.Ed.2d 90).

II.

Defendant insists that the charge of acting-in-concert denied his right to be prosecuted on the Grand Jury indictment. However, in People v. Duncan, supra, 46 N.Y.2d at 79-80, 412 N.Y.S.2d 833, 385 N.E.2d 572, we indicated that there is "no distinction between liability as a principal and criminal culpability as an accessory and [that] the status for which the defendant is convicted has no bearing upon the theory of the prosecution." Further, in People v. Bliven (supra) this Court upheld a defendant's indictment as a principal and conviction as an accomplice.

D...