83 A.D.2d 908 | N.Y. App. Div. | 1981
Lead Opinion
Appeal by defendant from a judgment of the Supreme Court, Richmond County (Di Vernieri, J.), rendered April 26,1979, convicting him of attempted murder in the second degree, assault in the first degree (two counts), burglary in the second degree (two counts), attempted rape in the first degree, sexual abuse in the first degree and petit larceny, upon a jury verdict, and imposing sentence. Judgment affirmed. We cannot agree with our dissenting colleagues that reversal of this conviction is mandated by errors in the Trial Judge’s instructions to the jury. As to the charge on intent, the limited portion quoted in the dissent was admittedly violative of the holding in Sandstrom v Montana (442 US 510). However, the offensive language was only part of a lengthy charge on the subject which, for the most part, was clear and correct. And, in any event, any error in the charge on intent was clearly harmless. After he announced his intent to rape the complainant, the defendant led her to the bedroom of her home. There he touched her breast and, when she tried to stall for time, he grabbed her and produced a “blade”. A struggle ensued, the blade was placed at the complainant’s neck, and she fainted. When she lost consciousness, she was fully clothed. When her daughter later discovered her lying on the bedroom floor near death, the complainant was unclothed above the waist and exhibited various injuries, among which was a slash across her throat from ear to ear so deep that a treating physician would later testify that the cut “looked like a big open wound where you could see all the way back into the throat, and there was a lot of blood.” In our view, it is entirely unrealistic to suggest that there was any ambiguity surrounding the intent with which the defendant slashed the throat of the complainant at a time when she may well have already been unconscious. Hence, we conclude that the Sandstrom error was harmless beyond a reasonable doubt. (See People v Crimmins, 36 NY2d 230.) The trial court’s charge on alibi was likewise erroneous but harmless in the circumstances of this case. Alibi testimony was given solely by the defendant’s mother. The close proximity between the defendant’s home and the scene of the crime, coupled with the time sequences involved, suggest that the purported alibi was not entirely inconsistent with the defendant’s commission of the crime. Moreover, the defendant failed to call his girlfriend who, according to his own statements and his mother’s testimony, could have supported the asserted alibi. (Cf. People v Rodriguez, 38 NY2d 95.) And, in any event, the defendant’s guilt was demonstrated by overwhelming evidence. The complainant testified that the defendant had gained entry into her home by representing himself as a landscaper and that, during the course of the crime, he had told her that his mother was a “witch” and that he did not like her. During a subsequent conversation with the police prior to his arrest, the defendant said that he was a free-lance landscaper who went from house to house to solicit business. He also told the police that he did not get along with his family. More important, however, was the manner in which the defendant came to the attention of the police and was subsequently identified as the perpetrator. Some nine days after the crime, the defendant approached a detective to ask about the progress of the investigation and to describe his psychic visions of the crime. In doing so, he revealed knowledge of an important detail of the crime scene which the police had withheld from the public. Having thus aroused police suspicions, the defendant was asked whether he would agree to be photographed. He did and his picture was subsequently selected unhesitatingly by the complainant from an array which is not challenged as unfair in any way. In court, the complainant positively
Dissenting Opinion
dissents and votes to reverse the judgment and order a new trial, with the following memorandum, in which Margett, J., concurs: The brutal acts attendant upon the crime, including the slashing of the victim’s throat from ear to ear, caused considerable public interest and were daily reported, in some detail, in the local press. Nine days after the commission of the crime, Detective James Sharp, on duty in a marked radio patrol car, was approached by defendant, who identified himself and inquired if the police had obtained any information concerning the woman with the slashed throat. Upon receiving a negative response, defendant said that at about the time that the crime took place, to wit, approximately 3:15 p.m. on May 11,1978, he and his girlfriend, both psychics, were walking in the area of the crime and that he “felt an uneasy feeling coming over [him that] something was wrong close by.” Defendant recounted that he and his friend went into a psychic trance and that he had a vision of a man and a woman fighting and that the woman had blood on her and the man had a knife. He said he came out of the trance and saw the same man running down the street with a knife in his hand. Defendant agreed to speak again to the detectives and departed leaving his address. Two days later he came to the 122nd Precinct and, in greater detail, told Detective Anthony De Gise of his vision, this time stating that the injured woman was lying on the floor beside a bed, covered with blood, clutching a bunch of hair in her hand. The following day, during a prearranged hour-long meeting with Detective Alfred Siragusa, the officer in charge of the investigation, defendant repeated essentially the same story. Siragusa’s suspicions were sharpened because he had not released this vital information (the finding of a clump of hair in the victim’s hand) to anybody, including the Staten Island Advance, the local newspaper. Query: How then did defendant become aware of this important piece of evidence? It must, however, be noted that upon the trial the prosecution did not prove that the Advance did not print that fact in its stories. It should be further noted that scientific tests established that the tuft of hair was not that of defendant, that it was possibly that of the victim or of some unknown third party. In similar vein and despite medical testimony to the effect that the wound was big and open and that “there was a lot of blood”, police laboratory tests revealed no traces of blood on a pair of defendant’s shoes seized in a search of his home. At trial, defendant presented that most perfect of all defenses, an alibi, claiming that he was at home at the time the crime occurred. The only witness to this effect was Cadorette’s mother, who testified that her son was home until 2:30 p.m. on the day in question, and that he left the house at that time with his girlfriend. Mrs. Cadorette then left for a short time and returned between 2:55 and 3:05 p.m., at which time the defendant was back in the house. The victim testified that defendant came to her house
