People v. Vasquez

• Decision Date: 22 January 1999
• Citation: 179 Misc.2d 854,686 N.Y.S.2d 624
• Parties: , 1999 N.Y. Slip Op. 99,091 The PEOPLE of the State of New York, Plaintiff, v. Christopher VASQUEZ, Defendant.
• Court: New York Supreme Court

Page 624

686 N.Y.S.2d 624

179 Misc.2d 854, 1999 N.Y. Slip Op. 99,091

The PEOPLE of the State of New York, Plaintiff, v. Christopher VASQUEZ, Defendant.

Supreme Court, New York County.

Jan. 22, 1999.

Arnold N. Kriss, New York City, for defendant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Matthew Bogdanos and Richard Plansky of counsel), for plaintiff.

MICHAEL A. CORRIERO, J.

In the early morning hours of May 23, 1997, the body of Michael McMorrow was found floating in the lake at Central Park. His body was badly mutilated; numerous slash and stab wounds covered his head, torso and extremities, his abdomen had been cut open and part of his intestines were exposed.

The events which led to that grim discovery, the arrest of two 15 year olds, Daphne Abdela and Christopher Vasquez, for the murder, and the disposition of their cases were the subject of intense media coverage.

Indicted for murder in the second degree, both were ultimately convicted of manslaughter in the first degree--Daphne Abdela after a plea of guilty and Christopher Vasquez after a jury trial.

The case against Christopher Vasquez rested entirely on circumstantial evidence. There were no eyewitnesses to the crime, except the accused teenagers. As the only witnesses to the slaying, they were both unavailable to the prosecution as a matter of law. Daphne Abdela invoked her privilege against self-incrimination when requested to testify after her plea; the defendant could not be compelled to testify against his will pursuant to his privilege against self-incrimination.

This decision addresses several issues raised during the course of the trial of Christopher Vasquez:

first, whether a statement made by Daphne Abdela during her plea allocution was a declaration against penal interest and therefore admissible as an exception to the hearsay rule;

second, whether and to what extent would the defendant be permitted to introduce evidence impeaching the credibility of Abdela's plea allocution, in her absence;

third, whether the prosecution would be permitted to introduce evidence of a statement made by the defendant to a classmate several weeks before the incident, that he was carrying a knife for protection;

fourth, whether lesser included offenses should be submitted to the jury at the request of the defense.

I

Daphne Abdela's plea allocution

a.) The factual context

At about 12:47 a.m. on May 23, 1997, Daphne Abdela's father, concerned about his daughter's whereabouts, called the police to report her missing. Police officers, responding to the call, met Mr. Abdela in the lobby of the family's residence. They were informed by a doorman that Daphne Abdela and a boy were in the building washroom on the lobby level. When they opened the door to the washroom, Abdela and Christopher Vasquez were observed sitting naked in a bathtub. Abdela told the officers that they had fallen rollerblading and were washing themselves off. The police, accepting the explanation, told them to dress and escorted both of them to Abdela's apartment, and left. Abdela's father called defendant Vasquez's mother and she came to the building and picked up her son at about 1:30 a.m.

At about 1:34 a.m. that same evening, the police received a 911 call from Abdela, wherein she told the police that she saw a body floating in the Central Park lake. She reluctantly disclosed her name and address. When the police arrived at her home she told them that she had witnessed a murder and that her companion, Christopher Vasquez, was responsible for it. She identified the deceased as an older man she had met several weeks previously at an Alcoholics Anonymous meeting. In the company of her father, she then took the police to the lake, where the body of the deceased was discovered.

Abdela gave the police information about Christopher Vasquez's address and accompanied them to a five story walk-up building in the East nineties, where Vasquez lived with his mother. After Christopher Vasquez was located and taken into custody, both he and Abdela were charged with the murder of 44-year-old Michael McMorrow.

b.) The procedural context

From the outset of the case, Abdela's attorney sought to cooperate with the prosecution and asserted that his client was merely a witness to the stabbing and not an accomplice. From June 1997 through November 1997, Abdela and her attorney met several times with law enforcement officials to discuss her involvement. [Tr. Tr. pp. 1827-2028; 2233-2335.] ¹

After her indictment, Abdela continued in her attempt to persuade the prosecution that she was a witness, despite her admitted efforts to help the defendant Vasquez cover up the crime by directing him to "gut" the deceased so that his body would not float, helping him to dispose of the body in the lake, and destroying the deceased's identification.

Sometime in September 1997, after several discussions with prosecutors pursuant to "Queen for a day" ² agreements, Abdela admitted her involvement was more than that of a witness. She stated that she saw the defendant Vasquez and the deceased in a struggle, that Vasquez was wielding a knife, and that she helped the defendant by kicking the deceased, causing him to fall to the ground. Vasquez then jumped on top of the deceased and continued to stab him. [Tr. Tr. pp. 2315-2320.]

On November 6, 1997, while these discussions were taking place between Abdela and the prosecution, Vasquez's attorney served a notice of intention to raise the affirmative defense of extreme emotional disturbance, pursuant to CPL § 250.10. The defendant submitted reports of psychiatrists and psychologists in support of the defense. The prosecution also had an opportunity pursuant to the Criminal Procedure Law to examine the defendant.

On February 24, 1998, Abdela's counsel and the prosecutrix appeared in chambers for an in camera discussion regarding a possible disposition of Abdela's case. At the conference, initiated by Abdela's counsel, it was revealed that the prosecution had offered Abdela a plea to manslaughter in the first degree on condition that she receive the maximum sentence for that crime, three years and four months to ten years ³. The plea did not require Abdela to cooperate or testify against her co-defendant Vasquez. [See transcript of February 24, 1997 proceeding, unsealed on consent of Abdela; Tr. Tr. pp. 1949-1950.]

On March 11, 1998, pursuant to the plea agreement, Abdela pled guilty to manslaughter in the first degree. She was sentenced to a maximum term of three years and four months to ten years on April 2, 1998. During her plea allocution she stated, in relevant part, reading from a prepared statement, that:

"On May 23, 1997, I participated in the assault that caused the death of Michael McMorrow....

"At some point during the struggle between Mr. McMorrow and Christopher Vasquez, I struck Mr. McMorrow and caused Mr. McMorrow to fall to the ground, by kicking his feet out from under him which caused him to fall backwards.

"At the time I took this action I saw that Mr. Vasquez was using a knife in his assault on Mr. McMorrow.

"My actions were taken by me to aid Mr. Vasquez and to cause serious physical injury to Mr. McMorrow...."

Subsequent to the plea, the lead prosecutrix accepted another assignment which prevented her from continuing with the case. She was replaced by another prosecutor in July 1998.

The new prosecutor sought to persuade Abdela to testify as a witness. A meeting was arranged between the new prosecutor and Abdela at the detention facility where she was serving her sentence. A representative of her attorney was present. After the meeting, Abdela's attorney notified the prosecution, defendant Vasquez's attorney and the Court, both by letter and at a court proceeding, that Abdela would not testify as a witness for either side. Moreover, if called as a witness she would invoke her privilege against self-incrimination. [See transcript of Sept. 9, 1998 proceeding.]

Counsel for defendant Vasquez and the prosecution did not move to contest Abdela's basis for invoking the privilege and both agreed that for the purposes of trial and evidentiary rulings she would be considered "unavailable" to both sides. [See Hearing Transcript Sept. 23, 1998, pp. 1-10; see Tr. of decision on admissibility of plea allocution Oct. 1, 1998, pp. 1-6; see also, Tr. Tr. pp. 1641-1644; 2193-2196.]

The prosecution then sought a pre-trial ruling concerning the admissibility of portions of Abdela's plea allocution as a declaration against her penal interest pursuant to the Court of Appeals decision in People v. Thomas, 68 N.Y.2d 194, 507 N.Y.S.2d 973, 500 N.E.2d 293. The Thomas case held that a plea allocution of a non-testifying co-defendant could be used at trial as a declaration against penal interest, provided certain safeguards and indicia of reliability were present.

On September 23, 1998, a hearing on the potential admissibility of parts of the plea allocution was conducted and this Court ruled, assuming proof of sufficient indicia of reliability at trial, that the Thomas doctrine would permit use of that portion of the plea allocution that described and explained Abdela's conduct at the time of the crime.

On November 2, 1998, immediately prior to the commencement of jury selection, the defense withdrew its notice of intention to raise the defense of extreme emotional disturbance, and instead proceeded on the theory that Abdela was solely responsible for the death of Michael McMorrow and that the defendant was merely an innocent bystander. [See defense opening statement, Tr. Tr. pp. 63-66.]

Consequently, Abdela's role on the night of the homicide became a major issue at the trial. During the course of the trial, the People sought admission of the factual portion of Abdela's plea allocution on their direct case to prove elements of the murder charges and to describe Abdela's role in the death of Michael McMorrow.

c.) The Law

The ...