People v. Tusa

• Decision Date: 16 May 1988
• Parties: The PEOPLE, etc., Respondent, v. Frank A. TUSA, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 392

528 N.Y.S.2d 392

137 A.D.2d 151

The PEOPLE, etc., Respondent, v. Frank A. TUSA, Appellant.

Supreme Court, Appellate Division Second Department.

May 16, 1988.

Vivian Shevitz, Brooklyn, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Patricia A. Murphy, of counsel, Bradley Max, on the brief), for respondent.

Before MOLLEN, P.J., and LAWRENCE, WEINSTEIN and KOOPER, JJ.

KOOPER, Justice.

The principal issue to be addressed on appeal is whether the court properly declined to charge the jury--as requested by the defendant--that two prosecution witnesses be deemed accomplices as a matter of law for the purposes of the corroboration requirements set forth in CPL § 60.22. For the reasons that follow, we conclude that the court properly determined that the status of the two witnesses as accomplices represented an issue for the jury's resolution and, accordingly, we affirm.

I.

The facts, insofar as pertinent, disclose that on July 6, 1985, the defendant Frank A. Tusa, accompanied by two friends, Jeffrey Nicolini and John Mulvey, left the defendant's home in his automobile with no particular destination in mind. The defendant had in his possession at the time a rifle which he had recently acquired.

With Mulvey operating the automobile, the three men stopped first at the residence of a friend where the defendant discharged the rifle into the air, and then near a junior high school field, where the defendant fired the rifle into the ground. Finally, they arrived at a nearby tavern where both Mulvey and Nicolini became heavily intoxicated. The record indicates, however, that the defendant had refrained from excessive drinking.

After leaving the tavern sometime between 1:00 A.M. and 2:00 A.M. on July 7, 1985, the men proceeded to the Southern State Parkway where, in the right lane, they noticed a red Camaro directly in front of them. Upon observing the Camaro, the defendant suggested that they harass and frighten the driver. Mulvey testified that defendant repeatedly requested that he "hit" the Camaro, to which he allegedly replied "[n]o, I ain't hitting the guy's car". Nicolini, who was reclining in the back seat, similarly testified that the defendant urged Mulvey to "scare the shit out of this guy" and also stated "[l]et's shoot at him". Mulvey, however, denied that the defendant mentioned shooting at the Camaro, and testified that after declining the defendant's entreaties, he accelerated so as to pass the Camaro on the left. Nicolini testified that in so doing, Mulvey pulled alongside the Camaro for a period of approximately 30 seconds. At this point, according to Nicolini, the defendant reached for the rifle, which he had left between the door and front seat, and pointed it out the window. Nicolini testified that both he and Mulvey immediately admonished the defendant not to "screw around" and to "[p]ut the gun away". Nevertheless, the defendant fired a single shot into the Camaro which fatally struck the operator of the vehicle in the head.

After the shot had been fired, Mulvey--who claimed that he was "freaking out" at this point--heard Nicolini laughing in the rear. Nicolini testified that he told defendant, "are you crazy", and wrested the gun from his grasp, concealing it in a red towel. Mulvey then pulled away from the decelerating Camaro, which had by now swerved off the road and crashed into a group of trees lining the highway. Although the three men turned around and passed the scene of the crime a short time later, they did not linger because they saw State troopers milling about.

A few days later, Nicolini learned from reading a newspaper account that the driver of the Camaro had died from a gunshot wound to the head. Thereafter, he dismantled the rifle and disposed of it.

II.

Acting upon an anonymous phone call which implicated the defendant in the shooting, the police initially placed him under surveillance. They questioned Mulvey on September 13, 1985, but he denied knowledge of the incident at that time. Thereafter, the police attempted to question Nicolini after obtaining information that he was a friend of the defendant. On October 5, 1985, Nicolini was informed by the authorities that he would be granted immunity if he agreed to disclose what had transpired on the night of the shooting. Nicolini agreed, and subsequently identified the defendant as the shooter. The defendant was arrested on October 7, 1985. When Mulvey discovered that the defendant had been arrested, he voluntarily surrendered to the police and was placed under arrest and later charged with hindering prosecution. The police sought, and obtained, Mulvey's cooperation, in return for which he was permitted to plead guilty to the misdemeanor of hindering prosecution in the third degree with a promise of probation. Thereafter, the defendant was charged with one count of murder in the second degree in connection with the shooting of Albert Ragozzino, who had been operating the red Camaro on the night in question. ¹

After the close of testimony--and prior to the submission of the case to the jury--the defense counsel requested that the trial judge charge the jury that Mulvey and Nicolini were accomplices as a matter of law. The court declined to do so, although it subsequently agreed to submit the issue to the jury as a question of fact for its resolution. Thereafter, the jury convicted the defendant of murder in the second degree. ² On appeal, the defendant contends, inter alia, that the court erred in declining to charge the jury that Mulvey and Nicolini were accomplices as a matter of law. We disagree.

III.

The statutory proscription against the conviction of a defenda based upon the uncorroborated testimony of an accomplice has its genesis in the traditional view held by the courts that such testimony "may often lack the inherent trustworthiness of a disinterested witness" ( see, People v. Berger, 52 N.Y.2d 214, 218, 437 N.Y.S.2d 272, 418 N.E.2d 1291; see also, People v. Moses, 63 N.Y.2d 299, 305, 482 N.Y.S.2d 228, 472 N.E.2d 4; People v. Cona, 49 N.Y.2d 26, 34, 424 N.Y.S.2d 146, 399 N.E.2d 1167, on remand 79 A.D.2d 1006, 435 N.Y.S.2d 30; People v. Chernauskas, 137 A.D.2d 607, 524 N.Y.S.2d 497). Accordingly, "[c]ourts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration" ( People v. Berger, supra, 52 N.Y.2d at 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291; People v. Cona, supra ). CPL § 60.22, the "modern version of the accomplice corroboration statute" ( see, People v. Berger, supra, at 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291), defines an accomplice as a witness who, according to the evidence adduced at trial, "may reasonably be considered to have participated in: (a) the offense charged; or (b) [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged" (CPL § 60.22[2]; People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156).

In construing the scope of the foregoing statute, the Court of Appeals has observed, inter alia, that "even though a witness is not liable criminally as an accomplice for the offense being tried, the witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based on some of the same facts or conduct which make up the offense on trial" ( see, People v. Berger, supra, 52 N.Y.2d at 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291; CPL § 60.22[2][b] ). As is apparent from the Court of Appeals' holding--and the language of the statute itself--the corroboration requirement is rendered expressly applicable to a limited class of witnesses whose perceived untrustworthiness derives either from their direct complicity in, or their commission of conduct which forms some part of, the crime for which the defendant is on trial (see, People v. Berger, supra ).

Application of the forgoing criteria within the factual context presented establishes that the court properly relegated the accomplice status of both Mulvey and Nicolini to the jury for resolution as a question of fact ³. Although as the defendant notes, the underlying policy objectives served by the testimoni corroboration principle have broadened the definition of the term "accomplice" beyond that which would obtain in a case where one's criminal liability as an accomplice is at issue ( see, People v. Berger, supra, at 219, 437 N.Y.S.2d 272, 418 N.E.2d 1291; People v. Basch, supra; People v. McAuliffe, 36 N.Y.2d 820, 822, 370 N.Y.S.2d 900, 331 N.E.2d 681; People v. Brooks, 34 N.Y.2d 475, 477, 358 N.Y.S.2d 395, 315 N.E.2d 460), in order for a witness to be deemed an accomplice as a matter of law, it must be established that, based on the evidence presented, the jury could reach no other conclusion than that the witness participated in (1) an offense charged or (2) an offense based on the same or some of the facts or conduct which constitute the offense charged ( see, e.g., People v. Cobos, 57 N.Y.2d 798, 455 N.Y.S.2d 588, 441 N.E.2d 1106; People v. Duncan, 46 N.Y.2d 74, 412 N.Y.S.2d 833, 385 N.E.2d 572, cert. denied 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275, rearg. dismissed 56 N.Y.2d 646, 450 N.Y.S.2d 1026, 436 N.E.2d 196; People v. Crutchfield, 134 A.D.2d 508, 521 N.Y.S.2d 289; People v. Kass, 132 A.D.2d 571, 517 N.Y.S.2d 297; see also, People v. Basch, supra, 36 N.Y.2d at 157, 365 N.Y.S.2d 836, 325 N.E.2d 156). The evidence adduced at trial in this respect was lacking.

Preliminarily, we reject the defendant's attempt to portray his precipitous homicidal act as the inevitable denouement of an evolving criminal enterprise or scheme, to which Mulvey and Nicolini must, as a matter of law, be deemed principal contributors and accomplices (cf., People v. Cobos, supra; People v. Rugg, 91 A.D.2d 692, 693, 457 N.Y.S.2d 613). While it is true that in Mulvey and Nicolini, the defendant found...