People v. Taylor

• Decision Date: 28 April 1980
• Citation: 427 N.Y.S.2d 439,74 A.D.2d 177
• Parties: The PEOPLE, etc., Respondent, v. Carol TAYLOR and Elizabeth Taylor, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 439

427 N.Y.S.2d 439

74 A.D.2d 177

The PEOPLE, etc., Respondent, v. Carol TAYLOR and Elizabeth Taylor, Appellants.

Supreme Court, Appellate Division, Second Department.

April 28, 1980.

Joseph F. DeFelice, Woodhaven, for appellant Carol Taylor.

Ernest H. Hammer, New York City, for appellant Elizabeth Taylor.

John J. Santucci, Dist. Atty., Kew Gardens (John H. Larsen, Asst. Dist. Atty., of counsel), for respondent.

Before MOLLEN, P. J., and TITONE, MANGANO and O'CONNOR, JJ.

MOLLEN, Presiding Justice.

The defendants, who are unrelated, stand convicted of murder in the second degree, conspiracy in the first degree and criminal solicitation in the first degree. The jury found that, acting in concert, they conspired to kill defendant Carol Taylor's husband, they unsuccessfully solicited one Anthony Pasquarelli to commit the murder, and they later succeeded in hiring a gunman who shot the victim to death. Both defendants now appeal.

The judgments should be affirmed.

The evidence as to the charges of conspiracy and solicitation was overwhelming and included testimony of Pasquarelli, who had personally refused entreaties to kill the deceased. As to the murder charge itself, the People offered evidence establishing motive, prior attempts to solicit persons to commit the homicide, and an aborted effort to lure the deceased to the bungalow where, several days later, he met his death. (See State v. Plyler, 153 N.C. 630, 69 S.E. 269, 271; 40 C.J.S. Homicide § 239.) This proof, when coupled with the additional circumstantial evidence adduced at trial and with testimony recounting inculpatory statements made by both defendants, was legally sufficient to support the jury's verdict of guilt on the murder count. It is of no significance that the People were unable to establish the identity of the slayer himself. A person who induces or hires another to commit a crime may be convicted as a principal notwithstanding the fact that the identity of the actual perpetrator remains unknown. (See People v. Kelly, 11 App.Div. 495, 496-497, 42 N.Y.S. 756; Hanley v. Nevada, 85 Nev. 154, 451 P.2d 852, 856; Von Patzoll v. United States, 163 F.2d 216, 219; 41 C.J.S. Homicide § 322.)

Although we affirm the convictions, we are constrained to express our strong disapproval of one aspect of the pretrial proceedings which, under different circumstances, might well have required reversal.

From the inception of this prosecution, the District Attorney's theory has been that the deceased had been murdered, not by the defendants themselves, but by someone they hired to commit the crime. Nevertheless, the indictment charged that:

"(t)he defendants * * * acting in concert on or about March 13, 1976 * * * with intent to cause the death of Herbert Taylor caused his death by shooting him with a pistol."

Prior to trial, the defendant sought a bill of particulars, asking, inter alia, that the prosecutor "(s)et forth whether the theory of the People is that the defendants shot the deceased or whether they hired someone to do so." The District Attorney, arguing that the defendants were seeking disclosure of evidentiary matters, opposed their request, and the court denied it. This was error.

In People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656, two defendants claimed that the indictments by which they were charged were defective because they failed to state facts constituting a crime. The Court of Appeals rejected that contention, observing that (p. 599, 412 N.Y.S.2d p. 116, 384 N.E.2d p. 663):

"(The challenged indictments) charge each and every element of the crime * * * and allege that the defendants committed the acts which constitute (the) crime at a specified place during a specified time period. No more is needed."

The court noted further that "(w)hen indicting for statutory crimes, it is usually sufficient to charge the language of the statute" (id ).

The indictment at bar, in the language of the statute, charged the elements of murder and alleged that at a specified time and place the defendants committed acts which constituted that crime. Hence, the indictment was sufficient under the test announced in Iannone. (See, also, People v. Fitzgerald, 45 N.Y.2d 574, 412 N.Y.S.2d 102, 384 N.E.2d 649; People v. Bliven, 112 N.Y. 79, 19 N.E. 638; People v. Katz, 209 N.Y. 311, 103 N.E. 305; People v. Liccione, 63 A.D.2d 305, 407 N.Y.S.2d 753.)

The holdings of Iannone and of the cases upon which it relied, however, were predicated upon the principle that where an indictment contains only a bare minimum of factual allegations the defendant is entitled to obtain as of right additional information by way of a bill of particulars. Indeed, in Iannone, the court issued a specific warning in that regard. The court wrote (45 N.Y.2d at p. 599, 412 N.Y.S.2d at p. 117, 384 N.E.2d at p. 663):

"A word of caution is in order. It is beyond cavil that a defendant has a basic and fundamental right to be informed of the charges against him so that he will be able to prepare a defense. Hence the courts must exercise careful surveillance to ensure that a defendant is not deprived of this right by an overzealous prosecutor attempting to protect his case, or his witnesses. Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery. Should the prosecutor decide to use an indictment which, although technically sufficient, does not adequately allow a defendant to properly prepare for trial, he may well run afoul of the defendant's right to be informed of the accusations against him."

In the case at bar, the defendants sought to compel the District Attorney to reveal whether they were charged with actually shooting the deceased or instead with hiring someone else to commit the crime. Criminal Term upheld the prosecutor's refusal to provide that...