People v. Tomaski
| Decision Date | 09 July 2012 |
| Citation | 2012 N.Y. Slip Op. 22410,985 N.Y.S.2d 824,44 Misc.3d 492 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Alan TOMASKI, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Frank A. Sedita, III, Esq., Erie County District Attorney, by James F. Bargnesi, Esq., Christopher J. Belling, Esq., Donna A. Milling, Esq., Assistant District Attorney, Attorneys for the People.
Joel L. Daniels, Esq., Andrew C. LoTempio, Esq., John K. Jordan, Esq., Attorneys for the Defendant.
The defendant, on June 10, 2010, was charged by this Indictment with Murder in the Second Degree, Penal Law § 125.25. A jury trial was conducted. On January 19, 2011, the defendant was convicted of the lesser included offense of Manslaughter in the First Degree, Penal Law § 125.20. On March 1, 2011, the defendant was sentenced to a 25 year determinate sentence and five (5) years post release supervision. Thereafter, the defendant moved pursuant to Criminal Procedure Law § 440.10–1(h) to vacate the conviction.
The defendant contends that his conviction was time barred by the Statute of Limitations, Criminal Procedure Law §§ 30.10–2(b), 30.10–4(a)(i) and People v. Knobel, 94 N.Y.2d 226, 701 N.Y.S.2d 695, 723 N.E.2d 550 (1999). The defendant further contends that his counsel's failure to raise the Statute of Limitations issue at trial was ineffective assistance of counsel requiring vacatur of his conviction.
The People oppose the relief requested. The People contend that the defendant has filed an appeal of his conviction and the issues raised in this motion are properly before the Appellate Division, Fourth Department. The People further contend that the defendant's continuous absence from New York State from August 18, 2002 through September 14, 2005 tolled the Statute of Limitations and excluding that time, the prosecution was timely. The People further contend that by not raising the Statute of Limitations issue at trial, the defendant waived it. Finally, the People contend that the defendant not raising the Statute of Limitations issue at trial was a trial strategy and not ineffective assistance of counsel.
A hearing was conducted pursuant to CPL § 440.10. Erie County Probation Officer Richard Robillard and Cheektowaga Police Detective Chris Chojnacki testified for the People. Attorneys Joel L. Daniels and Andrew C. LoTempio, as well as, Dawn Tomaski, Lori Krupp and Russell Emery testified for the defendant.
The People and the defendant stipulated that the crime alleged in this Indictment was committed on August 16, 2002 and the defendant left New York State for West Virginia on August 18, 2002. They further stipulated that he remained in West Virginia until June 24, 2003 and was in West Virginia from February 23, 2004 through July 20, 2004 and from October 8, 2004 through September 14, 2005. Finally, they stipulated this Indictment reported out on June 10, 2010. In dispute is what State the defendant was in during the time periods in between those stipulated, namely, June 24, 2003 through February 23, 2004 and July 20, 2004 through October 8, 2004.
There are 96 days that are tolled from the Statute of Limitations from June 10, 2005, which is five (5) years prior to the date this Indictment reported out, through September 14, 2005 which is the date the defendant last returned to New York State. Therefore, if the defendant was in New York State during either the first or both of the two (2) time periods that are in dispute, namely June 24, 2003 through February 23, 2004, 243 days, and July 24, 2004 through October 8, 2004, 80 days, the prosecution was not timely.
The credible evidence at the hearing revealed that the Cheektowaga Police Department was investigating the death of Samuel Ciappa after his body was found in the Sloan Reservoir on August 18, 2002. He had been stabbed and strangled and a cinder block was tethered to his body by a dog leash. The defendant was a person of interest in the death and the detectives were looking for him. On August 22, 2002, they went to the defendant's grandmother, Ms. Tomaski's home located at 48 Greenmeadow in Orchard Park, New York. Ms. Tomaski advised them that the defendant had gone to West Virginia and she had no phone or contact information for him. The investigation continued and the defendant was contacted by the Cheektowaga Police Department in West Virginia but no arrest was made.
According to Probation Officer Robillard, on February 8, 2011 he interviewed the defendant as part of the presentence investigation report after his conviction and the defendant told him he lived in West Virginia from late 2002 through early 2004 for a job opportunity. Robillard did not follow-up this information with the defendant or independently verify it since he concluded it was background information and not crucial to the presentence investigation report. He did not check addresses, telephone numbers or any other information to corroborate or confirm the defendant's statement.
According to Detective Chojnacki, he searched employment, New York State Department of Motor Vehicles, Taxation, Labor, Criminal Justice Services and United States Postal Service records and found nothing except a 1993 Firebird registered in the defendant's name at his grandmother's address in Orchard Park, New York. The defendant did have two (2) post office boxes in West Virginia in 2002, 2003 and 2004, but there was no specific information as to what time periods in those years or where in West Virginia they were. There was a dearth of evidence or records officially tying the defendant to New York State or West Virginia yielded by Detective Chojnacki's research.
Ms. Krupp resided at 44 Greenmeadow, next door to Ms. Tomaski. According to Krupp, the defendant moved back to New York State in the late Spring of 2003. She did not recall specific dates or the duration of his stay. She also said the defendant did some work off the books for her husband who is a contractor.
Mr. Emery was a dog breeder who resided in Dayton, New York in Cattaraugus County with his wife and numerous dogs. According to Emery, he had met the defendant when he sold a pitbull to him prior to August 18, 2002. The defendant asked if he could board his pitbulls at Emery's house because his grandmother wanted them out of her house. Emery told the defendant he could do so if he helped take care of his own dogs and the others Emery was caring for. The defendant agreed to do so and he and his girlfriend, Katie Truesdale, regularly visited Emery's house for that purpose. Eventually, because of icy winter conditions, the defendant asked if he and Truesdale could move into Emery's house and Emery agreed. According to Emery, the defendant lived with him from the Fall of 2003 through the Fall of 2004, although he did not recall specific dates or that the defendant was incarcerated from February 23, 2004 through July 20, 2004.
According to Ms. Tomaski, the defendant and Truesdale arrived at her home in Orchard Park, New York on June 24, 2003 with all their belongings and four (4) or five (5) pitbulls. They moved in with her and her husband, Arthur. She kept a diary during this time and wrote about the activities of her day and the people with whom she interacted as a relaxing ritual before bedtime. Numerous entries in the diaries for the years 2003, 2004 and 2005 mention the defendant and his daily activities in New York State.
Furthermore, Ms. Tomaski allowed the defendant to use her credit card to purchase dog food for his pitbulls that were eventually housed at Emery's kennel in Cattaraugus County, New York. Credit card statements and receipts memorialized several such purchases. She acknowledged the defendant did return to West Virginia to face unrelated criminal charges and he was incarcerated in West Virginia from February 23, 2004 through July 20, 2004 and again from October 8, 2004 through September 14, 2005. On September 14, 2005, she and her husband picked the defendant up in West Virginia and drove him back to New York State where he has resided ever since. The defendant introduced no official records such as tax, employment or motor vehicle records with his name on them.
Ms. Tomaski was aware of the defendant's criminal history, including two (2) prior felony convictions. She is the only family the defendant has and she has done and will continue to do whatever is necessary to help him emotionally and financially. She paid for the defendant's lawyers, posted his bail and provided food, clothing and shelter for him since he was 10 years old. She explained that her diary for the year 2004 had the year 1987 on the cover, yet she still used it not initially appreciating 2004 was a leap year. She kept her diary before 2003 and continued to keep it after 2005. In fact, when Detective Chojnacki visited her home on August 22, 2002 looking for the defendant, she gave him the 2002 diary at his request.
Joel L. Daniels is a prominent criminal defense lawyer in Western New York who has been practicing law since 1964. He had been retained by the defendant early in the investigation and had spoken to the People as early as 2004 and continued to have discussions with the People throughout these proceedings, both pre and post indictment. When this Indictment was filed on June 10, 2010, the sole count charging Murder in the Second Degree was not subject to any Statute of Limitations and the issue never arose. During the trial, Michael Hesse, an accomplice, testified that he and the defendant only wanted to beat up the victim. During the charge conference, the People argued that his testimony provided the reasonable view of the evidence warranting the charge down to the lesser included offense of Manslaughter in the First Degree. The defendant adamantly objected to this on the basis that it was an impermissible variance from the People's theory of the case set forth in this Indictment, the Bill of Particulars and the proof at trial...
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