People v. Romero

CourtNew York Court of Appeals
Citation7 N.Y.3d 633,859 N.E.2d 902
PartiesThe PEOPLE of the State of New York, Respondent, v. Ubaldo ROMERO, Appellant.
Decision Date21 November 2006

Page 902

859 N.E.2d 902
7 N.Y.3d 633
The PEOPLE of the State of New York, Respondent,
Ubaldo ROMERO, Appellant.
Court of Appeals of New York.
November 21, 2006.

Center for Appellate Litigation, New York City (William A. Loeb and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Susan Gliner and Mark Dwyer of counsel), for respondent.



Citing People v. Gaimari, 176 N.Y. 84, 68 N.E. 112 (1903), the Appellate Division rejected defendant's argument that the jury's verdict was against the weight of the evidence. The issue for us to decide is whether the Appellate Division's reliance on Gaimari indicates that the Court failed to apply the correct legal standard for reviewing this weight of the evidence claim. For the reasons that follow, we conclude that the Appellate Division did not err.


On November 1, 1990, Rafael Baez, Etienne Adorno and Demetrio Flores drove to

Page 903

a location in northern Manhattan, ostensibly for the purpose of robbing a drug dealer. Upon arrival, Baez exited the car to make a telephone call. At about the same time, a group of men armed with guns emerged from a nearby apartment building, approached the vehicle and fired their weapons, killing both Adorno and Flores.

According to various accounts, defendant Ubaldo Romero, his three brothers (codefendants Robert, George and Julio Romero) and a 14-year-old boy (referred to as Wilson C.) committed the murders. The Romero brothers operated a narcotics trafficking enterprise and used street dealers in the area where Adorno, Baez and Flores had gone to commit the robbery. Alerted to the presence of the would-be robbers, the Romeros, accompanied by Wilson C., went to an apartment and gathered firearms. Some witnesses recounted that after the group exited the building, one of the Romeros managed to get close to the car and shot at the driver. Defendant and Wilson C. simultaneously fired their weapons toward the vehicle. The perpetrators then fled the scene.

A police investigation revealed that Adorno and Flores had been shot multiple times and that neither man fired back at their assailants. Although the police were initially unable to identify the shooters, over the course of a decade investigators uncovered evidence that led them to suspect the Romeros. In 1999, the Romeros and Wilson C. were jointly indicted for two counts of intentional murder in the second degree. Wilson C. pleaded guilty to manslaughter in the first degree and, because of his age at the time of crime, was sentenced as a juvenile offender. The Romeros opted for a jury trial, which resulted in a mistrial when the jury could not render a unanimous verdict. At the retrial, the defense challenged the credibility of the People's witnesses based on inconsistencies in their factual recollections and because they had entered into cooperation agreements with the prosecution in return for favorable treatment regarding their own criminal activities. Ultimately, the jury acquitted George and Julio Romero but convicted Robert Romero and defendant of both homicide counts.

Among his arguments on appeal, defendant asserted that the jury's verdict was against the weight of the evidence. The Appellate Division rejected that argument and affirmed, explaining:

"The jury properly considered issues of credibility, including the weight to be given to the backgrounds of the People's witnesses, the benefits they received in return for testifying and the inconsistencies in their testimony, and there is no basis for disturbing the jury's determinations (see People v. Gaimari, 176 N.Y. 84, 94 [68 N.E. 112] [1903]). Numerous witnesses inculpated defendant[], and the jury could have reasonably concluded that differences in their perception and memory of details of this fast-paced, chaotic event accounted for the inconsistencies" (22 A.D.3d 287, 287, 804 N.Y.S.2d 8 [1st Dept 2005]).

A Judge of this Court granted leave.


Defendant contends that the Appellate Division erred as a matter of law by citing exclusively to People v. Gaimari, 176 N.Y. 84, 68 N.E. 112 (1903) in rejecting his assertion that the jury's verdict was against the weight of the evidence. According to defendant, the Gaimari analysis of the duty of an appellate court in determining whether the evidence supports a conviction conflicts with modern formulations of the parameters of weight of the evidence review, as articulated in People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761,

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508 N.E.2d 672 (1987). In order to assess the validity of this claim, we find it helpful to examine the historical antecedents that preceded codification of the authority of appellate courts to engage in weight of the evidence review (see CPL 470.15[5]; 470.20[5]; 470.30[1]).

At common law, appellate review of a criminal conviction, regardless of how grave the offense, was not viewed as a necessary component of elementary due process. The prevailing principle was that, "`if a defendant be convicted of felony or treason, though against the weight of evidence, there is no instance of a motion for a new trial in such a case, but the judge passes sentence, and respites execution, till application can be made to the mercy of the crown'" for a pardon (People v. Comstock, 8 Wend. 549, 549 [1832], quoting The King v. Mawbey, 6 Term Rep. 625; see People ex rel. Case v. Judges of Dutchess Oyer & Terminer, 2 Barb 282, 293 [1847] ["(i)f a verdict is rendered against the accused without sufficient evidence, he can always apply for, and generally obtain, a pardon"]). It was therefore "wholly within the discretion of the State to allow or not to allow such a review" and, in the absence of a constitutional or statutory provision authorizing an appeal, a defendant had no recourse for raising claims of error (see McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 [1894]).

The New York Legislature, however, provided for very limited review of criminal convictions in early statutory enactments (see 2 Rev. Stat. of N.Y., part IV, ch. II, tit. III, § 42 et seq., at 717-719 [1st ed. 1829]; People v. Dalton, 15 Wend. 581, 583 [1836], citing 1813 Rev. L. of N.Y., 36th Session, ch. IV, § VI [1 Van Ness and Woodworth rev. at 326], derived from Statute of Westminster 2, 13 Edw. 1, ch. 31). "[T]he revised statutes only authorize[d] the defendant, on the trial of an indictment, to except to decisions of the court in the same cases, and in the manner provided by law in civil cases" (People v. Haynes, 14 Wend. 546, 554 [1835]). At that time, it was "well settled, in civil cases, that the ... decision of the jury upon matters of fact, cannot be reviewed on a bill of exceptions, where there ha[d] been no erroneous decision of the court upon matters of law" (id.; see People v. Dalton, 15 Wend. at 584). Reflecting the deference afforded to credibility determinations by juries in civil cases, a criminal defendant could not attack a conviction on the ground that "the verdict of the jury was against evidence" since that was seen as a factual issue rather than a question of law (Vanderwerker v. People, 5 Wend. 530, 531 [1830]; see 1 Colby, Practical Treatise upon the Criminal Law and Practice of the State of New York, at 436 [1868]).

Some doubt was raised about the definitiveness of this principle as the courts began to recognize a need to allow for appellate intervention in order to correct manifestly unjust verdicts:

"There must be something in the case taking from the [trial] court its discretion [to deny a motion for a new trial] ... as in the case ... where the testimony was clear and explicit, and uncontradicted, and yet a verdict against it, and a refusal to set aside such verdict. In such case there would be no discretion; every verdict must be supported by evidence; where it is not, the law gives to the party injured a legal right to have it set aside, and a new trial ordered. Should any court possessing the power refuse to exercise it in such a case, it would be our duty to correct the error by mandamus. In such a case, where there is no dispute about facts, there is no discretion to exercise" (People ex rel. Oelricks v. Superior Ct. of

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City of N.Y., 10 Wend. 285, 290-291 [1833]; see Ex parte Baily, 2 Cow. 479, 483 [1824]).

Consistent with the judiciary's concern about being unable to overturn clearly incorrect guilty verdicts, in 1855 the Legislature enacted a law, "conceived[] in a spirit of liberal and enlightened humanity" (O'Brien v. People, 36 N.Y. 276, 278 [1867]), that allowed appellate courts to entertain a challenge to the weight of the evidence supporting a verdict:

"Every conviction for a capital offence, or for one punishable as a minimum punishment by imprisonment in state prison for life, shall be brought before the supreme court and court of appeals ... by a writ of error, with a stay of proceedings as a matter of right. And the said appellate court may order a new trial if it shall be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below" (L. 1855, ch. 337, § 3; amended L. 1858, ch. 330, § 1).

In simple terms, this statute established two new appellate functions in reviewing convictions that carried sentences of death or life imprisonment: the power to examine the facts of a case and determine whether the verdict was manifestly unjust, against the law or not supported by the weight of the evidence; and the authority to review alleged errors that had not been objected to during the trial — the equivalent of today's "interest of justice" jurisdiction (see CPL 470.15[3][c]; [6][a]).

Pursuant to the new powers granted by the act of 1855, this Court determined that it had an

"imperative duty . . . to examine carefully the whole record, and, if satisfied that the verdict is...

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