People v. Santanella

• Decision Date: 29 May 1978
• Citation: 405 N.Y.S.2d 284,63 A.D.2d 744
• Parties: The PEOPLE, etc., Respondent, v. Ralph SANTANELLA, John Cappiello and Anthony Tamilio, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 284

405 N.Y.S.2d 284

63 A.D.2d 744

The PEOPLE, etc., Respondent, v. Ralph SANTANELLA, John Cappiello and Anthony Tamilio, Appellants.

Supreme Court, Appellate Division,Second Department.

May 29, 1978.

Harry H. Levine, Brooklyn, for appellant Santanella.

Jacob Evseroff, Brooklyn (Bennett M. Epstein, Brooklyn, of counsel), for appellant Cappiello.

Albert J. Brackley, Brooklyn, for appellant Tamilio.

Eugene Gold, Dist. Atty., Brooklyn (Michael Gore, Brooklyn, of counsel), for respondent.

Before SHAPIRO, J. P., and COHALAN, MARGETT and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendants from three judgments of the Supreme Court, Kings County, one as to each of them, all rendered June 24, 1977, convicting each of them of two counts of murder in the second degree, upon a jury verdict, and imposing sentence.

Judgment as to defendant Tamilio affirmed.

Judgments as to defendants Santanella and Cappiello reversed, on the law, and new trial ordered as to them.

Defendants were each charged, inter alia, with two counts of murder in the second degree. The indictment alleged that on or about August 10, 1976 defendants, "having attempted to commit and committed the crimes of robbery and burglary, and in the course of and in furtherance of such crime(s) and of immediate flight therefrom," caused the deaths of Joseph and Angelina Tucci by means of a blunt instrument.

Each of the defendants employed a distinct strategy on his defense. Defendant Santanella did not testify in his own behalf. Upon summation Santanella's counsel conceded that his client had driven defendants Cappiello and Tamilio to the Tucci home on the morning of August 10, 1976. Santanella was, in fact, identified by a neighbor of Tuccis as one of those who was seen emerging from the alleyway of the Tucci home on the morning in question. Tamilio was also so identified. However, Santanella's counsel sought to portray his client as a "patsy" in this case. He contended that Santanella had no idea where he was taking Cappiello and Tamilio, that once at the Tucci home he took no part in the crime and that he had received no part of the proceeds therefrom. To the contrary, an acquaintance of Santanella testified at the trial that Santanella had admitted to him that he had participated in a robbery in which two people had been killed. However, Santanella disclaimed responsibility for the actual murders.

Defendant Cappiello made several statements to the police, the Assistant District Attorney and friends, which were admitted into evidence at the trial. Those statements clearly implicated Cappiello in the alleged robbery and burglary. Cappiello did not testify in his own behalf. Upon summation, his counsel conceded that Cappiello was guilty of the underlying felony. He, too, denied that his client had any knowledge that a murder would be committed and denied that his client had in any way participated in the murders.

Defendant Tamilio, who had also been identified as one of those who emerged from the alleyway of the Tucci home on the morning of August 10, 1976, knew Joseph Tucci. Tamilio's father and Mr. Tucci were business associates. Tamilio, testifying in his own behalf at the trial, conceded that he, Santanella and Cappiello had gone to the Tucci home on the morning of August 10. However, he stated that he was doing an errand for his father and denied that the crime was committed at that time. It was his contention that the Tuccis were alive at the time he was seen emerging from the alleyway and he presented several witnesses in an attempt to establish that claim. Upon summation, Tamilio's counsel argued that some time subsequent to the time his client left the Tucci home that morning, someone entered and committed the crimes for which defendants were indicted.

At the conclusion of the summations, the court charged the jury. As a part thereof, the court charged the affirmative defense to felony murder. The crime of felony murder is defined by subdivision 3 of section 125.25 of the Penal Law. After the definition the affirmative defense is set forth as follows:

"except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

"(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

"(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

"(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

"(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury."

The court's charge on this issue, was, in pertinent part, as follows:

"We have another portion of our law that is peculiar to felony murder cases, and I have had your attention and I would like to keep it. So, please listen. This is called an affirmative defense. We call it affirmative defense of non-killer. The law is as follows: On proof of certain mitigating circumstances the law allows a jury to find a defendant not guilty of felony murder who, although a participant in the underlying felony was not himself the person who caused the death of the decedent. I emphasize, however, that you are not to consider this defense unless the evidence satisfies you beyond a reasonable doubt that such defendant has been proven guilty of felony murder. It is only available to a non-killer defendant, and only after you, the jury, are satisfied of the guilt of such defendant beyond a reasonable doubt as to the felony murder. Only then may the jury turn to a consideration of the mitigating factors of his defense, that he was a non-killer.

"Before you may find a non-killer defendant not guilty of felony murder by reason of the foregoing affirmative defense, you must be satisfied that all of these mitigating factors have been proved when all of these mitigating factors have been proved to exist the law then allows the jury to extend mercy to such non-killer by finding him not guilty of the felony murder, but guilty instead of the robbery or the burglary in which he participated.

"If from the evidence adduced at this trial you are satisfied beyond a reasonable doubt that a defendant has been proven guilty of felony murder, it is only then that you may turn to a consideration of the mitigating factors of his defense that he was not the killer. If you decide to consider this, you must be satisfied that all of the mitigating factors have been proved to exist under the instructions I have given to you. If you are satisfied that all the mitigating factors have been proved to exist as to a non-killer defendant, you...