63 A.D.2d 744 | N.Y. App. Div. | 1978
Appeals by defendants from three judgments of the Supreme Court, Kings County, one as to each of them, all rendered June 24, 1977, convicting each of them of two counts of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment as to defendant Tamilio affirmed. Judgments as to defendants Santanella and Cappiello reversed, on the law, and new trial ordered as to them. Defendants were each charged, inter alia, with two counts of murder in the second degree. The indictment alleged that on or about August 10, 1976 defendants, "having attempted to commit and committed the crimes or tobbery and burglary, and in the course of and in furtherance of such crime[s] and of immediate flight therefrom,” caused the deaths of Joseph and Angelina Tucci by means of a blunt instrument. Each of the defendants employed a distinct strategy on his defense. Defendant Santanella did not testify in his own behalf. Upon summation Santanella’s counsel conceded that his client had driven defendants Cappiello and Tamilio to the Tucci home on the morning of August 10, 1976. Santanella was, in fact, identified by a neighbor of the Tuccis as one of those who was seen emerging from the alleyway of the Tucci home on the morning in question. Tamilio was also so identified. However, Santanella’s counsel sought to portray his client as a "patsy” in this case. He contended that Santanella had no idea where he was taking Cappiello and Tamilio, that once at the Tucci home he took no part in the crime and that he had received no part of the proceeds therefrom. To the contrary, an acquaintance of Santanella testified at the trial that Santanella had admitted to him that he had participated in a robbery in which two people had been killed. TTnwever, Santanella disclaimed responsibility for the actual murders. De