People v. Sage

• Decision Date: 01 April 2014
• Citation: 11 N.E.3d 177,988 N.Y.S.2d 104,23 N.Y.3d 16,2014 N.Y. Slip Op. 02214
• Parties: The PEOPLE of the State of New York, Respondent, v. Merlin G. SAGE, Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 16

11 N.E.3d 177

988 N.Y.S.2d 104

2014 N.Y. Slip Op. 02214

The PEOPLE of the State of New York, Respondent,

v.Merlin G. SAGE, Appellant.

Court of Appeals of New York.

April 1, 2014.

Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for appellant.

Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

The sole issue on this appeal arising from the defendant's conviction for manslaughter in the first degree is whether the trial court committed reversible error by failing to charge the jury with an “accomplice-in-fact” instruction for the People's key witness. We conclude that the evidence created a factual issue as to whether the witness was an accomplice and that the failure to instruct the jury was not harmless. The order of the Appellate Division should be reversed.

I.

The defendant was charged by Monroe County indictment with murder in the second degree ( seePenal Law § 125.25[1] ), stemming from the early-morning beating of Hector Merced on November 17, 2007. The People presented physical and testimonial evidence at trial seeking to establish that the defendant caused the death of Merced when he, along with two other men, viciously beat Merced, and shortly thereafter, on his own, forcefully struck him multiple times with a mop handle. The defendant disputed his involvement in the beating death of Merced and sought to impugn the testimony of the People's key eyewitness, Andrew Mogavero, casting him as an accomplice to the crime.

At trial, Mogavero presented a story of how he observed, but did not participate in, the entire series of attacks on Merced that eventually led to his death. He testified that on the night of the murder he had gone out drinking with the defendant and Damion Clarke when they met Merced at a bar. ¹ Thereafter, they all left to go drink at the apartment of Miguel Velez, an acquaintance of the defendant. According to Mogavero, within 20 minutes of arriving at the apartment, Clarke and Merced got into a “heated argument.” Clarke took off his shirt, yelled “[e]nough of the disrespect,” and head-butted Merced. Mogavero claimed that he had come back from the bathroom just in time to witness the incident and that he did not know why the men were fighting. Mogavero then claimed that Merced “came at me aggressively.” Mogavero punched Merced twice to protect himself, hitting Merced in the face and neck.

Mogavero testified that the beating of Merced then began in earnest, with the defendant, Clarke and Velez kicking and punching Merced. At some point Merced fell to the floor and the defendant, Clarke and Velez continued to punch and kick him, inflicting blows around the head and body. During the beating Mogavero saw Clarke jump and land on Merced's head with both feet and then hit him on the head with a large stereo speaker. Mogavero further testified that he observed Clarke try to defecate on Merced before the defendant urinated on him. According to Mogavero, Merced moved very little and did not attempt to get up.

Mogavero denied participation in the beating, claiming he only punched Merced twice at the beginning, and then he backed up and kept out of it because he did not want the others to turn on him. He testified that he decided to get Merced out of the apartment once the others had stopped beating him. Mogavero testified that he picked Merced up off the floor and, along with Velez, carried him across the street and placed his body on the porch of a neighbor's house, which was under renovation. Mogavero claimed that, as they carried Merced to the porch, he was bleeding from his head and face and that he slumped over when they left him seated on the porch.

Mogavero testified that he watched the defendant walk toward the porch, and strike Merced forcefully with a mop handle. He testified that he saw the defendant swing the handle at Merced's head and neck three times “[l]ike a baseball bat.” Mogavero claimed that he walked back to the porch and tried to stop the defendant, describing how he “kind of grabbed [the defendant]” by the shirt to “kind of pull[ ] him back” from Merced.

According to Mogavero, he and the defendant left the scene of the beating by separate routes and went to the defendant's home, which was a short distance away. As soon as he arrived there, Mogavero changed out of his clothes because they were stained with Merced's blood, placed the clothes in a garbage bag, and left them in a bedroom. He then “[j]ust hung out” at the defendant's home for a couple of hours, eventually falling asleep.

On cross-examination, the defense pointed to various inconsistencies between Mogavero's in-court testimony and his previous statement to the police made the day after the beating. Defense counsel elicited from Mogavero that his written and signed statement only indicated that the defendant had urinated on Merced, and made no mention of the defendant punching or kicking him. Mogavero attempted to explain this inconsistency by claiming that he had told the police that the defendant kicked and punched Merced, but that he did not realize that the written statement was incomplete until he testified at the grand jury a few days after the murder. On cross-examination he also admitted that the beating took place in a small living room space and that he was “[a] matter of feet” away from the beating but did not intervene. Mogavero further admitted that although his mother lived four streets away from the defendant's home, he did not go there after he left the scene of the beating.

The People's forensic pathologist testified that the victim died of a subarachnoid hemorrhage, which he opined can be caused by blunt force trauma to the head and neck, such as punches, kicks, stomping, and the throwing of objects directly onto the head. However, he could not testify as to which of the many blows caused Merced's death given the multiple blows inflicted on Merced. On cross-examination, he testified that a single blow to the head could cause a subarachnoid hemorrhage.

The People also offered into evidence the damaged mop handle and pieces of the mop discovered near Merced's body on the porch. The evidence established that Merced's blood was on the mop handle and pieces. Defendant's fingerprint was one of five recovered from the mop handle, and it was the only recovered fingerprint that allowed for a match to be made.

The People also read and submitted into evidence a written statement made by the defendant to the police approximately two days after the murder, wherein he described going out with the men and eventually going to the apartment. He denied participating in the beating and claimed that he had carried Merced out of the apartment, but did not see how Merced made it to the porch. He stated that he found a mop nearby and poked Merced with the mop handle three or four times and yelled at him to see “if he was all right.” In his statement the defendant described how Clarke had beaten, jumped on, and thrown the speaker on Merced. Defendant related that Clarke tried to defecate on Merced and told the defendant to urinate on Merced, which he did. The statement confirmed that Mogavero was with the defendant and the other men throughout the evening and at the apartment during the beating, that Mogavero had run to the defendant's house shortly after the attack, that the day after the beating Clarke went to the defendant's home where he told the defendant and Mogavero that Merced was dead and that he was going to go into hiding, that he advised them both to do the same, and that Mogavero then left the defendant's home. The investigator who authenticated the statement testified that he asked the defendant about Mogavero and that the defendant told him “he never saw [Mogavero] do anything” to Merced. The defendant did not testify or call any witness in his defense.

At the charge conference, defense counsel requested an “accomplice as a question of fact” jury instruction with respect to Mogavero, arguing that Mogavero's testimony, in conjunction with the testimony of the People's expert concerning the possibility that a subarachnoid hemorrhage could be caused by one punch, raised a question of fact as to Mogavero's involvement in the crime. Counsel argued that the jury should be able to consider Mogavero's possible involvement as an accomplice when determining his credibility as a witness for the People. The People opposed the request, arguing, inter alia, that there was insufficient evidence that Mogavero had acted as an accomplice to the murder, and that Mogavero did not receive a benefit for testifying.² County Court denied the defendant's request. The jury thereafter acquitted the defendant of the murder charge, but found him guilty of the lesser included offense of manslaughter in the first degree.³

As relevant here, the Appellate Division affirmed the conviction, concluding that the trial court had properly determined that Mogavero could not reasonably be considered to have participated in the crime, and that there was overwhelming evidence corroborating his testimony (98 A.D.3d 1254, 951 N.Y.S.2d 287 [2012] ). The defendant appeals pursuant to leave granted by a Judge of this Court (21 N.Y.3d 914, 966 N.Y.S.2d 366, 988 N.E.2d 895 [2013] ).

II.

The defendant argues on appeal that the trial court erred by not submitting to the jury the question of whether the People's key witness, Mogavero, was an accomplice, and, if so, whether his testimony was sufficiently corroborated. The defendant contends that, viewed in his favor, the evidence reasonably demonstrates that Mogavero participated in the crime or in another offense based upon the same conduct constituting the crime, such as manslaughter in the first or second degree, intentional assault, reckless assault, or criminally negligent homicide.⁴ The defendant further argues that failure to submit the accomplice in fact charge is...