People v. Vernace

• Decision Date: 10 July 2001
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent,<BR>v.<BR>ROBERT VERNACE, Appellant.
• Court: New York Court of Appeals Court of Appeals

96 N.Y.2d 886

756 N.E.2d 66

730 N.Y.S.2d 778

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.ROBERT VERNACE, Appellant.

Argued May 31, 2001.Decided July 10, 2001.

Stillman & Friedman, P. C., New York City (Paul Shechtman and Nathaniel Z. Marmur of counsel), for appellant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Alyson J. Gill and John M. Castellano of counsel), for respondent.

Before: Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT and GRAFFEO concur; Judge LEVINE dissents and votes to reverse in an opinion.

OPINION OF THE COURT

MEMORANDUM.

The order of the Appellate Division should be affirmed.

The Appellate Division's determination that the People established good cause for the delay in prosecuting the defendant is a mixed question of law and fact for which there is support in the record. This case involves a 1981 vicious double murder in a Queens bar, for which no one has yet been prosecuted. Three individuals linked to organized crime were thought to be suspects: defendant (aka "Pepe"), Frank Riccardi (aka "Frankie the Geech") and Ronald Barlin (aka "Ronnie the Jew"). While 20 to 25 people allegedly were in the bar at the time of the murders, virtually all of them denied seeing the crime. Shortly after the murders, the main witness either fled the jurisdiction or hid from the police, refusing to cooperate. Another witness recanted her identification of Barlin, resulting in dismissal of an indictment against him. Riccardi has never been located. The Appellate Division's inference of witness fear has ample support in the record, placing the good cause issue beyond this Court's further review.

In this State, "we have never drawn a fine distinction between due process and speedy trial standards" when dealing with delays in prosecution (People v Singer, 44 NY2d 241, 253). Indeed, the factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution (People v Staley, 41 NY2d 789, 792). Those factors are not simply the extent of the delay but also the reasons for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication that the defense has been impaired by reason of the delay (People v Taranovich, 37 NY2d 442, 445). Courts must engage in a sensitive weighing process of the diversified factors in the particular case.

While the delay has been extensive, the other factors favor the prosecution. Two bar owners were shot point blank after defendant's cohort allegedly became enraged over a spilled drink, resulting in second degree murder charges. There was virtually no pretrial incarceration. The defense has not been impaired; to the contrary, defendant has enjoyed significant freedom with no public suspicion attendant upon an untried accusation of crime, and the record does not demonstrate undue prejudice to the defense. Far from giving the People an unfair tactical advantage, the delay here has made the case against defendant more difficult to prove beyond a reasonable doubt. In any event, a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant (People v Singer, 44 NY2d, at 254, supra).

LEVINE, J. (dissenting).

I respectfully dissent. The uncontested evidence at the Singer hearing (see, People v Singer, 44 NY2d 241) showed that, no later than September 1981, the police had established defendant's identity and participation in the April 11, 1981 fatal shootings, at the Shamrock Bar, of the two owners of the bar. The Shamrock bartender had identified all three of the assailants by their nicknames, "Frankie, the Geech," "Ronnie, the Jew" and "Pepe." They had been his patrons when he worked at another neighborhood bar in Queens.

The detectives initially investigating the murder were able to ascertain that the Frankie and Ronnie named by the bartender were, respectively, Frank Riccardi and Ronald Barlin. The bartender identified Riccardi from a high school yearbook photograph and Barlin from a mug shot taken on a prior arrest. The FBI furnished two important leads regarding Pepe: that he frequented a certain social club known as an organized crime hangout, and lived at a specified location with a named girlfriend. The bartender identified defendant as Pepe from surveillance photographs of a man visiting the social club. The photographs were then shown to the girlfriend on September 30, 1981, who confirmed that they depicted defendant and disclosed that he was actually her husband, Robert Vernace. She claimed to have no knowledge of defendant's whereabouts and refused any further cooperation. In addition to the bartender, only one other person present at the Shamrock during the shootings—a Linda Gotti—was able to identify all three assailants from any photographs.

The Homicide Bureau of the Queens County District Attorney's Office applied in a written memorandum dated March 25, 1982, for authority to present "the case of People v. Barlin, Riccardi and Vernace" for Grand Jury consideration of two counts of murder in the second degree. As the foregoing discussion demonstrates, the evidence against defendant at that time was indistinguishable from that against Riccardi and only differed from the proof inculpating Barlin in the respect that Barlin was the only one of the three suspects arrested and, following the arrest, put in a lineup and identified as a participant in the shootings by Linda Gotti.

It is also undisputed that, for reasons never revealed during the Singer hearing, the Queens County District Attorney's Office determined to present the murder charges to the Grand Jury only against Riccardi and Barlin. The Grand Jury promptly handed up indictments against them for the Shamrock homicides. Riccardi, however, was never apprehended and remains at large to this day. The case against Barlin was dismissed on motion of the District Attorney in May 1983, when Linda Gotti was unable to identify him at a Wade hearing.

Concededly, for the next 14 years there was a total absence of any action by the prosecutor or any other law enforcement authorities toward establishing defendant's criminal responsibility for the Shamrock murders. Our case law is well-settled with respect to the effect of such inordinate pre-accusatory prosecutorial delay. In contrast to the holdings of the Supreme Court of the United States under the Due Process Clause of the 14th Amendment (see, United States v Lovasco, 431 US 783, 790, reh denied 434 US 881), we view an...