wonderme12
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Before the CoVid issues here in NY, the 2nd department was approximately 18-24 months behind in issuing decisions ..
Shannan Gilbert's 23 Minute 911 Call
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Before the CoVid issues here in NY, the 2nd department was approximately 18-24 months behind in issuing decisions ..
hawkshaw
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People v Montefusco
2007 NY Slip Op 07869 [44 AD3d 879]
October 16, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 12, 2007
The People of the State of New York, Respondent,
v
Raymond Montefusco, Appellant.
—[*1] Eldridge & Langone, PLLC, Massapequa, N.Y. (Richard Langone and Joel A. Brenner of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey and Anne E. Oh of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered June 6, 2006, convicting him of burglary in the third degree (three counts), receiving reward for official misconduct in the second degree (three counts), official misconduct (six counts), and criminal facilitation in the fourth degree (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions on counts six through fifteen of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant, a former Suffolk County Police Officer, was convicted, after a jury trial, of burglary in the third degree and related offenses in connection with the November 1999 burglary of a King Kullen supermarket, and two additional burglaries and related charges involving incidents that occurred in July 2000 at a Jiffy Lube store and at a bar called Parsnips. In each case, the crimes allegedly were committed by a number of individuals acting in concert with the defendant, who, in each instance, acted primarily as a lookout.
The defendant contends that the accomplice testimony upon which the People relied to establish his participation in the three burglaries was insufficiently corroborated and, therefore, the evidence was legally insufficient to support the convictions. In New York, "[a] defendant may [*2]not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1]). Although the corroborative evidence need not establish each element of the offense, it must tend to connect the defendant to the crime charged (see People v Besser, 96 NY2d 136, 143-144 [2001]; People v Breland, 83 NY2d 286, 292-293 [1994]; People v Steinberg, 79 NY2d 673, 683 [1992]; People v Robinson, 297 AD2d 296, 297 [2002])." 'Matters in themselves of seeming indifference . . . may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between the defendant and the crime' " (People v Morhouse, 21 NY2d 66, 74 [1967], quoting People v Dixon, 231 NY 111, 116-117 [1921]). "So long as the statutory minimum is met, it is for the jury to decide whether the corroboration satisfies them that the accomplice is telling the truth" (People v Steinberg, 79 NY2d at 683; see People v Robinson, 297 AD2d at 297).
Contrary to the defendant's contention, the accomplice testimony regarding the King Kullen burglary was sufficiently corroborated at the trial by testimony from nonaccomplice witnesses establishing, inter alia, that the defendant was near the scene at the time of the burglary, that he took it upon himself to respond to several reports of burglar alarms being triggered at the premises, that he falsely reported that the location was secure, and that he discouraged other police units from responding. There was also independent evidence that one of the accomplices was a friend of his and the co-owner of a business that had paid him money (see CPL 60.22). Thus, we find that the verdict of guilt on counts one through five of the indictment, charging the burglary of the King Kullen supermarket and related crimes, is supported by legally sufficient evidence (see People v Forino, 39 AD3d 664 [2007], lv denied 9 NY3d 865 [2007]; People v Maelia, 37 AD3d 619 [2007]; People v Watkins, 5 AD3d 510 [2004]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt on those counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
With respect to the Jiffy Lube and Parsnip burglaries, however, we agree with the defendant's contention that the proof offered to corroborate the accomplice testimony fell short of the statutory minimum (see CPL 60.22) and, therefore, the convictions relating to those two incidents were not supported by legally sufficient evidence. The fact that two eyewitnesses saw two unidentified individuals inside the Jiffy Lube store on the night it was burglarized, and evidence that the defendant owned a Nissan Xterra, which was the same type of car one of the accomplices allegedly saw him driving on the night of the Parsnips burglary, are insufficient, without more, to connect the defendant to those crimes. Moreover, in light of the time span between the King Kullen burglary and the two other charged burglaries, and the different alleged participants, the corroborative evidence sufficient to support the convictions for the crimes committed at the King Kullen supermarket cannot serve, standing alone, to support the convictions arising out of the other two incidents (cf. People v Glanda, 5 AD3d 945, 952 [2004]; People v Spencer, 272 AD2d 682, 684 [2000]). Accordingly, the defendant's convictions under counts six through fifteen of the indictment must be vacated and those counts dismissed (see People v Robinson, 297 AD2d 296 [2002]).
The defendant's challenge to the court's circumstantial evidence charge, as well as his claims of prosecutorial misconduct, are unpreserved for appellate review (see CPL 470.05 [2]), and, in any event, do not warrant reversal. We note that inasmuch as this was not a wholly circumstantial case, no special charge on circumstantial evidence was required (see People v Daddona, 81 NY2d 990 [1993]; People v Wiggins, 31 AD3d 584 [2006]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Goldstein, Skelos and Fisher, JJ., concur.
2007 NY Slip Op 07869 [44 AD3d 879]
October 16, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 12, 2007
The People of the State of New York, Respondent,
v
Raymond Montefusco, Appellant.
—[*1] Eldridge & Langone, PLLC, Massapequa, N.Y. (Richard Langone and Joel A. Brenner of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael Blakey and Anne E. Oh of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.), rendered June 6, 2006, convicting him of burglary in the third degree (three counts), receiving reward for official misconduct in the second degree (three counts), official misconduct (six counts), and criminal facilitation in the fourth degree (three counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions on counts six through fifteen of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant, a former Suffolk County Police Officer, was convicted, after a jury trial, of burglary in the third degree and related offenses in connection with the November 1999 burglary of a King Kullen supermarket, and two additional burglaries and related charges involving incidents that occurred in July 2000 at a Jiffy Lube store and at a bar called Parsnips. In each case, the crimes allegedly were committed by a number of individuals acting in concert with the defendant, who, in each instance, acted primarily as a lookout.
The defendant contends that the accomplice testimony upon which the People relied to establish his participation in the three burglaries was insufficiently corroborated and, therefore, the evidence was legally insufficient to support the convictions. In New York, "[a] defendant may [*2]not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense" (CPL 60.22 [1]). Although the corroborative evidence need not establish each element of the offense, it must tend to connect the defendant to the crime charged (see People v Besser, 96 NY2d 136, 143-144 [2001]; People v Breland, 83 NY2d 286, 292-293 [1994]; People v Steinberg, 79 NY2d 673, 683 [1992]; People v Robinson, 297 AD2d 296, 297 [2002])." 'Matters in themselves of seeming indifference . . . may so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between the defendant and the crime' " (People v Morhouse, 21 NY2d 66, 74 [1967], quoting People v Dixon, 231 NY 111, 116-117 [1921]). "So long as the statutory minimum is met, it is for the jury to decide whether the corroboration satisfies them that the accomplice is telling the truth" (People v Steinberg, 79 NY2d at 683; see People v Robinson, 297 AD2d at 297).
Contrary to the defendant's contention, the accomplice testimony regarding the King Kullen burglary was sufficiently corroborated at the trial by testimony from nonaccomplice witnesses establishing, inter alia, that the defendant was near the scene at the time of the burglary, that he took it upon himself to respond to several reports of burglar alarms being triggered at the premises, that he falsely reported that the location was secure, and that he discouraged other police units from responding. There was also independent evidence that one of the accomplices was a friend of his and the co-owner of a business that had paid him money (see CPL 60.22). Thus, we find that the verdict of guilt on counts one through five of the indictment, charging the burglary of the King Kullen supermarket and related crimes, is supported by legally sufficient evidence (see People v Forino, 39 AD3d 664 [2007], lv denied 9 NY3d 865 [2007]; People v Maelia, 37 AD3d 619 [2007]; People v Watkins, 5 AD3d 510 [2004]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt on those counts was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
With respect to the Jiffy Lube and Parsnip burglaries, however, we agree with the defendant's contention that the proof offered to corroborate the accomplice testimony fell short of the statutory minimum (see CPL 60.22) and, therefore, the convictions relating to those two incidents were not supported by legally sufficient evidence. The fact that two eyewitnesses saw two unidentified individuals inside the Jiffy Lube store on the night it was burglarized, and evidence that the defendant owned a Nissan Xterra, which was the same type of car one of the accomplices allegedly saw him driving on the night of the Parsnips burglary, are insufficient, without more, to connect the defendant to those crimes. Moreover, in light of the time span between the King Kullen burglary and the two other charged burglaries, and the different alleged participants, the corroborative evidence sufficient to support the convictions for the crimes committed at the King Kullen supermarket cannot serve, standing alone, to support the convictions arising out of the other two incidents (cf. People v Glanda, 5 AD3d 945, 952 [2004]; People v Spencer, 272 AD2d 682, 684 [2000]). Accordingly, the defendant's convictions under counts six through fifteen of the indictment must be vacated and those counts dismissed (see People v Robinson, 297 AD2d 296 [2002]).
The defendant's challenge to the court's circumstantial evidence charge, as well as his claims of prosecutorial misconduct, are unpreserved for appellate review (see CPL 470.05 [2]), and, in any event, do not warrant reversal. We note that inasmuch as this was not a wholly circumstantial case, no special charge on circumstantial evidence was required (see People v Daddona, 81 NY2d 990 [1993]; People v Wiggins, 31 AD3d 584 [2006]).
The defendant's remaining contentions are without merit. Schmidt, J.P., Goldstein, Skelos and Fisher, JJ., concur.
hawkshaw
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Read the above decision and I will explain to you why the appellate court is full of crap. The prosecutions reply to that appeal was 66 pages long. IN THE first 33 pages I found 125 error, outright lies NOT supported by the trial record. They NEVER read the trial record otherwise they could have affirmed one of the charges!
hawkshaw
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BTW - One of those frame artists was James Burke. His buddy was Tom Spota. One of the police officers that lied at trial is the same liar that testified against Spota. They are all been since convicted of crimes for what is essentially lying.
hawkshaw
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I showed the son in law's appeal to a recently retired judge on LI. He was known as a 'hanging judge'. Local attorneys that knew him made a practice of avoiding his courtroom for their clients.
This same judge tells me that while the appeal is good ....it could be better I shouldn't be hopeful the court will do the right thing by it. Several prominent lawyers told me the same thing.
The same judge told me he never allowed Molineux testimony in his courtroom. He said it was grossly unfair to the defendants. And this guy was a hanging judge!
In that court decision I posted on a thread you will read in the last sentence of that decision:
' the appellants remaining contentions are without merit.' Those for useless scumbags were talking about two Molineux issues.
This same judge tells me that while the appeal is good ....it could be better I shouldn't be hopeful the court will do the right thing by it. Several prominent lawyers told me the same thing.
The same judge told me he never allowed Molineux testimony in his courtroom. He said it was grossly unfair to the defendants. And this guy was a hanging judge!
In that court decision I posted on a thread you will read in the last sentence of that decision:
' the appellants remaining contentions are without merit.' Those for useless scumbags were talking about two Molineux issues.
hawkshaw
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In a word: "YUP''
hawkshaw
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What is even funnier is Spota and McPartland are appealing based on the idea James Hickey is a LIAR. I couldn't agree more. When I read that it is always good for a laugh- lolololololol
I guess Hickey must have matured into a liar because he wasn't a liar when he testified at my former son in law's trial. I guess those three cops who came into the courtroom and heard him testify were shocked when they heard their former sergeant Hickey lie on the stand. He chased them down and reamed them out. Dickie Dormer followed with a threat to keep their mouths shut.
YES TOM SPOTA JAMES HICKEY IS A LIAR and there is no one better than you that knows that!
Save your money with the appeal and use the Dean Skelos Corona Virus con job to stay out of jail.
I guess Hickey must have matured into a liar because he wasn't a liar when he testified at my former son in law's trial. I guess those three cops who came into the courtroom and heard him testify were shocked when they heard their former sergeant Hickey lie on the stand. He chased them down and reamed them out. Dickie Dormer followed with a threat to keep their mouths shut.
YES TOM SPOTA JAMES HICKEY IS A LIAR and there is no one better than you that knows that!
Save your money with the appeal and use the Dean Skelos Corona Virus con job to stay out of jail.
hawkshaw
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TOM - when you report to the Big White Building for whatever it is you are doing you should think about being wheeled in sitting in a wheel chair. Take walks around in your neighborhood in a bathrobe. It is never to early to start the con job
wonderme12
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Decision has been issued - http://www.courts.state.ny.us/courts/ad2/Handdowns/2020/Decisions/D62737.pdf
Appellate court has "agree[d] with the Supreme Court’s determination to deny the SCPD’s motions to quash and to grant those branches of the plaintiffs’ cross motion which were to enforce the subpoenas subject to stated restrictions" and agrees with the "Supreme Court’s determination that the SCPD’s conclusory assertions that disclosure of the 911 recordings would interfere with an ongoing homicide investigation more than eight years after Shannan’s death did not outweigh the plaintiffs’ interest in disclosure of material which was relevant to the plaintiffs’ action."
911 call contents to be released...
Appellate court has "agree[d] with the Supreme Court’s determination to deny the SCPD’s motions to quash and to grant those branches of the plaintiffs’ cross motion which were to enforce the subpoenas subject to stated restrictions" and agrees with the "Supreme Court’s determination that the SCPD’s conclusory assertions that disclosure of the 911 recordings would interfere with an ongoing homicide investigation more than eight years after Shannan’s death did not outweigh the plaintiffs’ interest in disclosure of material which was relevant to the plaintiffs’ action."
911 call contents to be released...
hawkshaw
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'that the subpoenas sought production of records that were barred from production under the Public Officers Law. '
Anybody have an idea why this relates to the above? I believe that law (50A) is related to an individual police officer's disciplinary record?
I wonder why the two most relevant people involved in this action appeared to be nothing more than 2 Bumps on a log. I am referring to Sini and PC Hart
Anybody have an idea why this relates to the above? I believe that law (50A) is related to an individual police officer's disciplinary record?
I wonder why the two most relevant people involved in this action appeared to be nothing more than 2 Bumps on a log. I am referring to Sini and PC Hart
wonderme12
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interesting... i'm going to look into this later today and will circle back.
PreciousDust
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Why do I get a "hey, we must've lost that darned phone call somewhere" kinda vibe?
hawkshaw
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Not to mention there is still and option to appeal to a higher court. It may not be OVER yet. They withheld the video tape of a guy shooting Melius at the Oheka Castle until they believed it would lead to a dead end. They may have been wrong because someone said they could ID the shooter.
PreciousDust
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A hat tip to you as well, Hawk!
To me this is great news. Hopefully we will hear what is on the 911 tapes.
Will the SCPD and the Suffolk County waste more money in appeals to block the release?
I hope this will lead to justice for Shannan.
mage
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Happy to see PresciousDust as well, It's been too long.
Ray's role appears to be more akin to Thomas Hagen, the family lawyer to the Corleone's,
or Bruce Cutler, the mafia lawyer to John Gotti and the Gambino family.
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