People v. Schulz

• Decision Date: 05 May 2005
• Citation: 4 N.Y.3d 521,829 N.E.2d 1192
• Parties: The PEOPLE of the State of New York, Respondent, v. Stephen G. SCHULZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

829 N.E.2d 1192

4 N.Y.3d 521

The PEOPLE of the State of New York, Respondent, v.Stephen G. SCHULZ, Appellant.

Court of Appeals of New York.

May 5, 2005.

William E. Hellerstein, Brooklyn, Marjorie M. Smith and Daniel S. Medwed for appellant.

Thomas J. Spota, District Attorney, Riverhead (Anne E. Oh of counsel), for respondent.

OPINION OF THE COURT

G.B. SMITH, J.

There are two primary issues before us on this appeal.First, defendant alleges that the trial court abused its discretion in denying third-party culpability evidence that would have shown that someone other than defendant committed the robbery charged in the indictment (seePeople v. Primo,96 N.Y.2d 351, 356-357, 728 N.Y.S.2d 735, 753 N.E.2d 164[2001]).Second, defendant also contends that the People failed to prove his guilt of the crime of robbery, first degree beyond a reasonable doubt.We reject both contentions and affirm the order of the Appellate Division.¹

Facts

A jury convicted defendant of robbing the El Classico Restaurant in Brentwood, New York.One of the two persons in the restaurant, Jose Vasquez, the owner and cook, identified defendant at trial.The second witness, an employee at the restaurant, Otilia Ruiz, failed to identify defendant at trial.

At approximately 8:20 P.M. on February 3, 1999, defendant entered the restaurant, asked for a menu and ordered a shrimp dinner.He subsequently went to the kitchen door to ask how long it would take to prepare the meal.Velasquez responded 10 to 15 minutes.Thereafter, Velasquez came out of the kitchen and went over to Ruiz who was standing behind the cash register in the bar area.He asked Ruiz what she was doing with the dollar bill in her hand, and she responded that the customer (defendant), who was also in the bar area, wanted change.

Ruiz testified that after Velasquez returned to the kitchen, the customer went to the cash register, opened it and began taking money.Ruiz grabbed the robber by the shirt, told him not to take the money and screamed to Velasquez that they were being robbed.The robber pulled out a knife and held Ruiz by the neck with his other hand.Velasquez heard Ruiz scream.He came out of the kitchen and saw the defendant leaving the restaurant.Velasquez described the defendant as a "white male, tall, like 6'2", heavy, weigh like 250, 275."He described the defendant as having chestnut colored hair.Velasquez also described the car as "like Chevy or Oldsmobile or Buick, four door, 2-tone, brown on the bottom, beige on the top."This description matched the car of defendant's roommate, Anthony Tralongo.²Velasquez attempted to follow the car but lost it after a few blocks.

Also on February 3, 1999, Ruiz gave a statement to Detective Conde of the Suffolk County Police Department describing the robber as a "big white guy" wearing blue docker type pants, a blue striped shirt, and brown work boots.She also told the police that defendant was "very large, about 6' 2," 250-275 pounds, clean shaven, rotten teeth, and bad breath and dark hair.

On the day following the robbery, both Velasquez and Ruiz identified defendant from a photograph of six white men.Based on the descriptions, the detectives went to defendant's home where they saw a two-toned brown Chevrolet Celebrity in the driveway.The detectives arrested the defendant and impounded the car, which belonged to his roommate.Several days later, Velasquez identified the car at the police precinct where the police had placed it among 20 other cars.

At trial, Velasquez, in addition to testifying about the facts of the robbery, also testified to selecting defendant from two lineups of six men, all in white jumpsuits.According to testimony by Detective Gieck, defendant was allowed to select his number in the lineup.The lineups occurred sequentially.In the first lineup, he selected number three and in the second, number six.According to the detective, defendant was selected both times by Velasquez as the robber of El Classico Restaurant.³

At trial the arresting officer, Detective Gieck, testified that Velasquez told him on the night of February 3, 1999, that the person who robbed his restaurant was "a big white male, 250 pounds."Defense counsel asked defendant to stand up and asked Detective Gieck how much his client appeared to weigh.The detective replied "about 250 pounds."Defense counsel also asked Detective Gieck about a string of robberies being investigated in a nearby precinct at the time of the El Classico robbery.The detective indicated that the perpetrator of those robberies weighed over 450 pounds.

Defense counsel also had a newspaper photo of a third party marked for identification as Exhibit E.The detective was shown the picture of Guilfoyle but did not recognize it.Ruiz, however, failed to make a positive identification, and in fact did not identify defendant as the person who robbed the restaurant.On the People's application, defendant was required to stand and show his teeth to the jury so that they could make an analysis of whether or not the teeth were rotten and chipped.

Defendant chose not to cross-examine Ruiz and, thus, did not show her a picture of Guilfoyle.At the end of Ruiz's testimony, defendant made a motion to dismiss based upon insufficient evidence, which was denied.Defendant next made an offer of proof to enter a newspaper photograph of Anthony Guilfoyle, who defendant claims is the actual robber of the restaurant.Counsel claimed that because Guilfoyle had robbed two or three establishments in the area prior to February 3, 1999 and two or three after February 3, 1999, and because he resembled the description of the robber given by Velasquez and Ruiz, there was a chance that Guilfoyle was the robber.To lay a foundation for the photograph, defendant offered to call the police officers, who made the arrests in the Guilfoyle case, to describe the prior robberies, and the indictment against Guilfoyle.The officers were produced on September 2.Prior to any testimony from the officers, the court ruled that it would not permit the photograph into evidence because there was no evidence linking that person to the restaurant robbery.The defense attorney then stated that the defendant would not put in a case and would not call the officers.

Defendant was convicted of first degree robbery and sentenced to a determinate term of 11 years.On June 14, 2000, defendant moved pro se in the trial court to vacate his conviction on the basis of ineffective assistance of counsel, and on the basis that the prosecution failed to prove his guilt beyond a reasonable doubt (seeCPL 440.10[1][h]).On September 5, 2000, the trial court denied the motion.

On February 10, 2003, Supreme Court also denied defendant's CPL 440.10(1)(g)motion to vacate the conviction based on newly discovered evidence, concluding that the affidavit made in support of the motion, in which Ruiz stated that she is "90%" certain that Guilfoyle is the person who robbed her, was not newly discovered, and that defense counsel had the opportunity to use the photograph of Guilfoyle at trial to cross-examine her but chose not to.Supreme Court wrote:

"Here, the `newly discovered evidence' offered by the defendant consists of an affidavit in which Otilia Ruiz states that the defendant was not the robber, and that she is 90% certain that Anthony Guilfoyle was the true perpetrator.Although the defendant contends that this evidence would probably change the result if a new trial is granted, the court is not convinced that such is the case.Ruiz essentially testified at trial that the defendant was not the robber, and the jury nevertheless found the defendant guilty based on identification testimony by Jose Velasquez.It is by no means probable that Ruiz's ability to identify Guilfoyle as the robber would have affected the jury's assessment of the identification testimony."

Moreover, there is no evidence that the picture revealed the rotten teeth that Ruiz noted in her description of the robber.

Defendant appealed to the Appellate Division which, on March 29, 2004, affirmed the conviction and affirmed both orders denying defendant's CPL 440.10motions to vacate the judgment of conviction.The Appellate Division found that the evidence against defendant was "legally sufficient to establish the defendant's guilt beyond a reasonable doubt"(seePeople v. Schulz,5 A.D.3d 799, 800, 774 N.Y.S.2d 165[2d Dept.2004]).Further, the Appellate Division determined that defendant had not proffered newly discovered evidence and that the motion to vacate the conviction was properly denied without a hearing.

A Judge of this Court granted defendant leave to appeal.

Discussion

People v. Primo,96 N.Y.2d 351, 356, 728 N.Y.S.2d 735, 753 N.E.2d 164[2001], which held that before permitting evidence that another party committed the crime for which a defendant is on trial, the court must balance the probity of the evidence against the prejudicial effect to the People, is determinative of this appeal.In that case, this Court reversed a conviction for attempted murder in the second degree based upon the trial court's exclusion of ballistics evidence tied to another person who was present at the scene.This Court stated (at 357, 728 N.Y.S.2d 735, 753 N.E.2d 164), "The admission of evidence of third-party culpability may not rest on mere suspicion or surmise."The concern is that the evidence of third-party culpability will cause "undue prejudice, delay and confusion" of the evidence presented to the jury.In order to determine whether the evidence will be admitted, the court must allow the defense "to make an offer of proof outside the presence of the jury to explain how it would introduce evidence of third party culpability."Then, the court must allow the prosecutor to make counter-arguments.

In the case at bar, the court allowed the defense to make a proffer of evidence concerning the photograph outside the presence of the jury...