Post on 16-Nov-2014
STATEMENT OF THE CASE
PROCEDURAL HISTORY
This case is on appeal from the decision of the Supreme
Court of New York, Appellate Division, Fourth Department, that
affirmed the judgment rendered upon verdict of the Erie County
Court, Supreme Court of New York. The jury convicted the
Defendant of murder in the second degree for his accessorial role
in a homicide. This Court granted leave to appeal.
OPINION BELOW
In the decision of the Appellate Division, Fourth
Department, the court found that the weight of the circumstantial
evidence presented at trial was sufficient to establish the
Defendant’s guilt as an accessory beyond a reasonable doubt. The
court concluded that the Defendant shared the intent of Albini
because they were close friends, the Defendant helped Albini to
meet with Stec on the night she was killed, and the Defendant
arranged for the disposal of the body. People v. LaBruna, 66
A.D.2d 300, 382, 414 N.Y.S.2d 380, 303 (4th Dep’t. 1979).
Therefore, the court believed that the jury could reasonably
infer from these facts that the Defendant acted with the
requisite mental culpability as an accessory to murder because
the totality of evidence permitted no other reasonable
hypothesis. Id. at 302, 414 N.Y.S.2d at 381.
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The totality of the evidence, however, did not persuade the
dissenting judge. He viewed the circumstantial evidence as
failing to show that Gino Albini premeditated the murder, and
could not escape the conclusion that Albini may not have formed
the intent to murder until the moment he did so. If Gino Albini
did, in fact, act spontaneously, then “the record does not permit
an inference that the defendant took a purposeful part in the
homicide.” Id. at 307, 414 N.Y.S.2d at 384. Even allowing that
Gino Albini did premeditate the murder, the record failed to
show, that the Defendant formed the requisite independent design
to kill. Id. at 307, 414 N.Y.S.2d at 384.
Furthermore, the dissent felt that the intent of the
Defendant had been wrongly extrapolated from the acts of Gino
Albini, rather than from the acts of the Defendant himself. Id.
at 306, 414 N.Y.S.2d at 384. When the dissent examined the sole
conduct of the Defendant, namely his assistance in drawing the
victim from her home, his presence during the murder, and his
disposal of the body, the judge pointed out that all of these
acts could have been performed without a knowledge of Albini’s
intent to kill. Id. at 306, 414 N.Y.S.2d at 384. The crucial
inferential link was the conduct of the Defendant at the moment
of the murder, and the record here lacked that information: “No
evidence describes the conduct of the defendant prior to or
during the time Albini drew his gun and fired.” Id. at 306-07,
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414 N.Y.S.2d at 384. Furthermore, the only conduct that the
record could point to for verification of the Defendant’s intent
at the time of the shooting was his disposal of the body after
the shooting. Id. at 306, 414 N.Y.S.2d at 384.
Lastly, the dissent rejected the notion that the Defendant
had any desire to murder the victim. One could not glean a
motive from the friendship between the Defendant and Albini
because it was “hardly a circumstance of compelling weight.” Id.
at 307, 414 N.Y.S.2d at 385. Additionally, a lack of motive
evidence, “in some circumstances may tend to establish that the
defendant . . . lacked the requisite intent,” Id. at 307; 414
N.Y.S.2d at 385 quoting People v. Luciano, 46 N.Y.2d 767, 769,
413 N.Y.S.2d 651. Therefore, the dissenting judge called for a
reversal of the conviction.
STANDARD OF REVIEW
In order to determine whether the evidence before the jury
was legally sufficient to support a finding of guilt beyond a
reasonable doubt, the proper standard of review on appeal, “is
whether the evidence, viewed in the light most favorable to the
People, could lead a rational trier of fact to conclude that the
elements of the crime have been proved beyond a reasonable
doubt.” People v. Cabey, 85 N.Y.2d 417, 420, 626 N.Y.S.2d 20, 22
(1995).
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STATEMENT OF FACTS
The bulk of the evidence against the Defendant was derived
from the testimony of Sandra Newland, John Marinola, Patsy
Purpera, Police Chief Leo Donovan, Robert Brocato, and most
important, Nelson Willette. The district attorney granted
immunity to Mr. Willette from charges of second degree assault,
second degree burglary, and violating his state parole (R. at
533) in return for his testimony. Mr. Marinola and Mr. Purpera
also received immunity in exchange for their testimony, (R. at
296, 367) and the district attorney offered to write a letter to
the Governor on behalf of Robert Brocato seeking to commute his
prison sentence for his conviction of second degree murder (R. at
755).
THE EVIDENCE AT TRIAL
Sandra Newland mainly testified to the actions of Gino
Albini on the evening of June 2, 1970. She stated that Gino
Albini received a phone call that night, after which he became
visibly upset (R. at 227). He then left their apartment for an
hour, returned, took a gun from a drawer, paced around the house
while looking out the front window, and left when someone honked
a horn outside (R. at 227). Albini returned again an hour later
in the company of the Defendant and Susan LaPera (R. at 228).
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Albini’s hand was bleeding because he had shot himself (R. at
228, 232). Newland then drove Albini to New York City where he
received a tetanus shot (R. at 232). She also stated that Albini
was found dead shortly thereafter in a parking lot in Buffalo (R.
at 233).
John Marinola testified that Gino Albini called him on the
night of the murder and said that he had killed somebody (R. at
286). Subsequently, Marinola called Purpera and they joined
Albini, the Defendant, and Susan LaPera at Sandra Newland’s
apartment (R. at 283). Marinola, Purpera, LaPera and the
Defendant then drove to a field at the foot of Michigan Avenue
(R. at 289). The Defendant and Purpera went into the field
together and returned with a rolled up rug (R. at 291-92). They
placed the rug in the trunk, drove to an intersection near
Trenton Street, opened a manhole cover, and deposited the rug in
the sewer (R. at 294).
Marinola stated that his fear of Gino Albini led him to
offer his assistance to him on that evening (R. at 311). He said
that Albini was a “maniac” (R. at 311), “always very high strung
and nervous” (R. at 313), and a “half a million people” were
afraid of him (R. at 314). Albini was known as a killer who
would shoot you without provocation (R. at 314).
Patsy Purpera testified that he accompanied the Defendant
into a field to look for a body (R. at 346, 351). The Defendant
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found the body (R. at 351,) and stated to him, “Man, this chic is
heavy” (R. at 356). Purpera said that the Defendant never
acknowledged to him that he knew anything about the murder (R. at
363). When asked by defense counsel why he assisted Albini, he
said that he believed he had no other alternative (R. at 362).
He said he helped Albini out of fear of his violent reputation
(R. at 362-63).
Nelson Willette testified to a conversation that he had with
the Defendant sometime between May 1972 and August 1973 (R. at
495). Willette stated that the Defendant told him that he was at
the Ivanhoe Restaurant with Albini and Elayne Stec when Albini
got into a fight (R. at 482). The man Albini fought died the
next day (R. at 481). The Defendant then told Willette that he
and Albini were afraid of how Stec would withstand police
questioning, so they repeatedly tried to get Stec out of her
house (R. at 481). Stec was afraid of Albini after she witnessed
the Ivanhoe assault (R. at 482). Willette also stated that the
Defendant told him that Albini had murdered Stec (R. at 482), and
that he was with Albini when he murdered her (R. at 535). Prior
to his testimony in this case, Willette testified against his co-
defendants in a trial for conspiracy and extortion in exchange
for immunity (R. at 538). He refused to testify against the
Defendant (R. at 517) until April 14, 1976 when he was
apprehended during a burglary. At the time of his testimony,
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Willette was facing up to twenty-two years of prison (R. at 527)
for the burglary, assault, and parole violations charges. He was
granted full immunity from those charges (R. at 520).
Chief Leo Donovan offered conflicting testimony about law
enforcement’s involvement with Elayne Stec. Donovan testified
that the Buffalo Police were looking for Stec as a witness to the
death of Thomas Trent at the Ivanhoe Restaurant (R. at 410, 412).
He first testified that they originally learned of her identity
as a missing person through a report from the State Teletype
System (R. at 412). They received this report on July 28, 1970
(R. at 446), fifty-six days after Stec disappeared. He then
stated that they began looking for Stec three or four days after
she disappeared because they had “received word that she could be
a possible witness in a case not related to this” (R. at 412).
That word came on May 27 or 28, 1970 from FBI agent Frank Connors
who told Donovan that Stec witnessed the death of Thomas Trent at
the Ivanhoe (R. at 414). After that, the police called the Stec
household and spoke to Elayne Stec’s mother, and “arrangements
were made to go to her house and talk to her. The next time
Sergeant Dove went out there, Elayne Stec’s mother told him that
Elayne was missing” (R. at 412). However, Donovan testified that
Dove was sent to the Stec household on May 28, 1970 (R. at 448)
when he could not possibly have learned that Stec was missing
because she did not disappear until June 2, 1970.
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THE CHARGE TO THE JURY
The judge advised the jury that they could not find the
Defendant guilty based solely on the testimony of Nelson
Willette. He stated, “Our law provides that a person may not be
convicted of any offense solely upon the evidence of an admission
made by him without additional proof.” (R. at 1074) Since
Willette’s testimony was the bulk of the testimony that provided
this admission, the judge charged that the jury “must further
find other credible facts that the crime of murder was committed
by someone.” (R. at 1074) The jury returned a verdict of guilty.
SUMMARY OF THE ARGUMENT
No reasonable jury could have concluded that the Defendant
shared the intent of Gino Albini to murder Elayne Stec because
the evidence introduced at trial was legally insufficient to
sustain a guilty verdict. The evidence is legally insufficient
because it failed to establish that Gino Albini premeditated the
murder and, lacking premeditation, the Defendant could not have
shared the intent of the principal. Further, no evidence points
to the Defendant’s formation of an independent design to kill,
and this lack points to the inexistence of an intent to kill.
Furthermore, the conduct of the Defendant reflected in the record
fails to illuminate his intentions at the time of the killing.
The testimony of Nelson Willette regarding the motive for the
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murder may impute guilt to the principal actor, but one cannot
extract premeditation and a shared designed to kill from this
testimony alone. Therefore, no rational trier of fact could have
concluded that the circumstantial evidence in the record was
enough to render a verdict of guilty.
THE ARGUMENT
The circumstantial evidence in this case does not logically
compel the conclusion that the Defendant acted with the requisite
mental culpability to render him an accessory to intentional,
premeditated murder. According to New York Criminal
Procedure, “A person may not be convicted of any offense solely
upon evidence of a confession or admission made by him without
additional proof that the offense charged has been committed.”
N.Y. CRIM. PROC. LAW §60.50 (Consol. 2004). The offense charged
is second-degree murder, of which a person is guilty if, “with
the intent to cause the death of another person, he causes the
death of such person or of a third person.” N.Y. PENAL LAW §
125.27 (Consol. 2004). The Defendant was not charged as a
principal but as an accessory, and an accessory is defined as
follows: “When one person engages in conduct which constitutes
an offense, another person is criminally liable for such conduct
when, acting with the mental culpability required for the
commission thereof, he solicits, requests, commands, importunes,
or intentionally aids such person to engage in such conduct.”
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N.Y. PENAL LAW § 20.0 (Consol. 2004). In this case, the jury
needed to find, beyond a reasonable doubt, that Gino Albini both
committed and premeditated the murder of Elayne Stec, and that
the Defendant shared his intent to kill the victim. In order to
show that the Defendant shared the intent of the principal, the
evidence must sufficiently prove that the Defendant formed an
independent design to kill the victim.
While the record contains the requisite evidence to show
that Gino Albini murdered Elayne Stec, it lacks proof of the
murder’s premeditation. The absence of that proof negates the
possibility that the Defendant could have shared the intent of
the principal or could have formed an independent design to kill.
Even if premeditation can be inferred, the record still fails to
prove the Defendant accessorily liable because presence at the
murder scene and the disposal of the body are wholly insufficient
to lead a rational trier of fact to the conclusion that the
Defendant formed an independent design to kill. Therefore, the
circumstantial evidence is legally insufficient to lead a
reasonable jury to a guilty verdict.
I.ALBINI’S CONDUCT DOES NOT EXHIBIT A PREMEDITATED PLAN TO MURDER.
The inescapable deficiency in the People’s proof is the
failure to establish that Gino Albini premeditated his murderous
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acts. This evidentiary shortage results in a failure to prove
the offense charged. Without evidence sufficiently supportive of
premeditation, the record cannot sustain the conclusion that the
Defendant colluded with the principal in the premeditation of the
crime.
The primary testimony concerning Albini’s conduct lacks
legal sufficiency to show premeditation. That evidence came from
Sandra Newland, John Marinola and Patsy Purpera. Newland
testified that she was with Albini that night when he received a
phone call, after which he seemed upset. Albini then left,
returned, retrieved a gun from a drawer and left again. He
returned with a bloody hand and in the company of the Defendant.
Marinola and Purpera both testified, in exchange for immunity,
that Albini said he had killed somebody on that night. When
viewed in the light most favorable to the People, these facts may
be sufficient to establish that he murdered Stec, yet they are
deprived of any value in showing that Albini premeditated the
murder. The lack of a preconceived murderous intention rules out
the possibility that there was a murder plan stirring between the
Defendant and Albini that evening. The law provides that “guilt
can be proven if it is shown that the defendant was a willing and
active participant in a plan or scheme, the foreseeable, yet
unexpected, consequence of which was the victim’s death. People
v. Veneziano, 123 A.D.2d 725, 726, 506 N.Y.S.2d 985, 986 (2nd
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Dep’t. 1986). No plan or scheme here is evident from the facts
on the record, therefore the jury could not possibly have
concluded that the Defendant participated in one.
II.THE DEFENDANT FORMED NO INDEPENDENT DESIGN TO
KILL.
The evidence in the record cannot reasonably sustain the
view that the Defendant formed his own independent design to kill
Elayne Stec. Absent direct proof of an agreement or plan made in
advance, the intent of the all participants must be shown through
the formation of an independent design to kill. People v.
Monaco, 14 N.Y.2d 43, 248 N.Y.S.2d 41 (1964). The judge in
Monaco stated, “In the absence of some statutory synthesis of
intention which makes out any homicide to be murder, intended or
not, whether a homicide is committed ‘with a design to effect
death’ depends on adequate proof of such a design by each person
charged.” Id. at 44, 248 N.Y.S.2d at 41.
The facts in Monaco reflected that Monaco and his companion
went looking for members of a rival gang to assault and
intimidate. Fasano was armed with a gun and Monaco knew that he
was carrying a loaded weapon. Fasano eventually used it to kill
the deceased in Monaco’s presence. The evidence reflected
testimony that the original intention of both Monaco and Fasano
was to intimidate and scare a rival gang member, but Fasano ended
up shooting the deceased. The judge held that, “A spontaneous
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and not concerted or planned use of the weapon to kill is not,
without more, attributable to the companion whose guilt in a
joint design to effect death must be established beyond a
reasonable doubt. An agreement to murder must be shown to
exclude other fair inferences.” Id. at 43-44, 248 N.Y.S.2d at
41. In the present case, no evidence reflects that the Defendant
knew that Gino Albini was carrying a loaded hand gun when he
killed Stec, let alone that there was any concerted use of the
weapon. Nothing in the record challenges the possibility that
Gino Albini spontaneously shot Stec, and a spontaneous act of
homicide is not attributable to the Defendant in the absence of a
joint plan to kill. (See Monaco, “Where the record shows merely
a spontaneous act of homicide by one, the other is not, without a
greater showing of a personal design to kill, guilty of murder.”
Id. at 44, 248 N.Y.S.2d at 41.) As the dissenting judge below
denoted, “ No agreement to kill, no purpose to kill, no expressed
intent to kill, can be gathered from the evidence.” Id. at 43,
248 N.Y.S.2d at 41. The jury’s conclusion that accessorial
liability attached to the Defendant in the face of the missing
elements that comprise an independent design to kill is plainly
irrational.
III.MERE PRESENCE AT THE SCENE OF THE CRIME DOES NOT DOES
PROVE INTENT.
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It is well-established that presence alone during the
perpetration of a crime is wholly insufficient for accessorial
liability to attach to the witness. Presence alone is
insufficient to prove someone an accessory because presence is
purely objective. Accessorial liability requires more: a showing
of the subjective intent of the accessory while the crime is
being committed. The judge in People v. Reyes, 82 A.D.2d 925,
926, 440 N.Y.S.2d 674, 675 (2nd Dep’t. 1981) stated "Mere
presence at the scene of a crime with knowledge of its
perpetration does not render the observer accessorily liable
therefore.” Here, the only fact on the record is that the
Defendant was present at the scene at the time of the murder, but
evidence as to his behavior when Albini pulled the trigger is
missing.
The case of People v. LaBelle, 18 N.Y.2d 405, 276 N.Y.S.2d
105 (1966) is applicable. Richard LaBelle and his brother Edward
picked up a girl in their car and Edward LaBelle subsequently
raped her twice. He then murdered her outside of the car while
Richard was seated inside the car. The Court of Appeals reversed
Richard LaBelle’s conviction of premeditated murder because the
People’s evidence was circumstantial and insufficient. The only
evidence that the prosecution put forth was Richard LaBelle’s
presence at the crime scene and his assistance in the disposal of
the body, and no evidence was offered to rule out the possibility
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that Richard LaBelle had no knowledge of his brother’s homicidal
intentions. Therefore, the Court said that one does not become
an abettor to a principal because, “in an objective sense this
person was helpful or of use to the actual perpetrator of the
crime. There is a subjective element as well.” Id. at 412, 276
N.Y.S.2d at 110.
Just like the evidence in LaBelle, the evidence here only
reflects that the Defendant was present when the crime occurred,
he had knowledge of its perpetration, and assisted in the
disposal of the body. These circumstances merit only mere
suspicion as to the Defendant’s intentions at the crime scene.
When a jury draws inferences from the circumstantial evidence in
a case, “it must appear that the inference of guilt is the only
one that can fairly and reasonably be drawn from the facts, and
that the evidence excludes beyond a reasonable doubt every
reasonable hypothesis of innocence.'" People v. Spencer, 1
A.D.3d 709, 711; 767 N.Y.S.2d 154, 156 (3rd Dep’t. 2003). For
the jury to conclude that these elements imputed the requisite
mental culpability onto the Defendant is unreasonable because
they all fail to illuminate what the Defendant intended at the
time of the murder. Without that crucial behavioral link, these
elements are wholly insufficient to establish the liability of
the Defendant as an accessory because the inference to be drawn
only creates mere suspicions about the Defendant’s intent. Mere
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suspicion is not enough to construe that the inference of guilt
is the only one that can be fairly and reasonably drawn. (See
People v. Cleague, 22 N.Y.2d 363, 376, 292 N.Y.S.2d 861, 865,
(1968)“the danger with the use of circumstantial evidence is that
of logical gaps . . . which, if undetected, elevate coincidence
and, therefore, suspicion into permissible inference.”)
The recent Court of Appeals decision People v. Ficcarota,
91 N.Y.2d 244, 668 N.Y.S.2d 993 (1997) is distinguishable. The
facts in Ficcarota are more probative of a community of purpose
between the principal and the Defendant. Unlike the case at bar,
on one occasion prior to the crime, the efendant brandished a gun
at the victim, and demanded that he comply with the demands of
his employer Angelo Boccadisi. The natural inference to be drawn
from this episode is that a failure of the victim to comply with
his demands would result in further action, possibly involving
the use of the gun. This is conduct that imputes both motive and
intent to the Defendant and also the kind of conduct that the
record here is lacking. Furthermore, the victim in Ficcarota
testified as to the Defendant’s conduct during the crime. We
know that the defendant Ficcarota exited the car after Boccadisi
stopped it in a desolate field, saying he had somewhere to be.
At the same time, Boccadisi emerged from the trunk area wearing a
white coat, the front of which he held shut with his hand.
Ficcarota’s exit, which conveniently occurred at the exact moment
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that Boccadisi emerged to kill the victim, speaks of a
coordinated effort between the two.
By contrast, we do not know what the Defendant LaBruna was
doing when Albini shot Stec. Therefore, the inference that he
intended her murder does not logically emanate from this missing
block of time, and “circumstantial evidence is as nothing unless
the inferences to be drawn from the circumstances are logically
compelling.” People v. Cleague, 22 N.Y.2d 363, 367, 292 N.Y.s.2d
861, 865 (1968). Moreover, this Court recognized in People v.
Ozarowski, 38 N.Y.2d 481, 490-91, 381 N.Y.S.2d 438, 443-44
(1976), that “while the ultimate act of violence may be used by
the trier of facts in making the inference of intent as to the
defendant who actually struck the blow, that act is not
determinative of the intent of the other conspirators.”
Therefore, Albini’s pulling of the trigger is not probative of
the Defendant’s intentions. (See also People v. Bray, 99 A.D.2d
470, 470 N.Y.S.2d 50, 51 (2nd Dep’t. 1984), “The People did not
prove such [specific] intent on the part of the defendant and his
accomplices’ intent should not be imputed to him.”) This Court
recognizes that “’a defendant’s intent is the product of the
invisible operation of the mind,’ to be determined, inevitably,
on the basis of the defendant’s statements and conduct.” People
v. Samuels, 99 N.Y.2d 20, 23, 750 N.Y.S.2d 828, 830-31 (2002).
The absence of any evidence regarding the Defendant’s statements
17
or conduct at the scene reveals nothing as to his state of mind,
the crucial element of intent.
IV. THE EVIDENCE OF MOTIVE IS INSUFFICIENT TO SHOW INTENT.
There was not a strong enough showing in the record of
motive to assign intent to the Defendant. The law provides that
motive and the actions and statements of the defendant comprise
the substance of intent for they are the telltale fingerprints of
one’s state of mind. Motive derives its importance as an element
of proof from its value in helping to ascertain the existence of
intent. See New York Criminal Practice § 69.2 (Matthew Bender &
Co., Inc. et al. eds., 2004). Since the record is scant on
actions or statements of the Defendant that warrant probative
merit, a reasonable jury needed to rely on the existence of
motive to deduce the intent of the Defendant. Motive is not a
prerequisite to committing murder, but murder can never be
committed without intent, and the absence of motive, even if not
decisive, weighs heavily on the question of intent. People v.
Dinser, 192 N.Y. 80, 85 (1908). Here, the Defendant’s motive is
gravely questioned.
Nelson Willette’s testimony provided the only evidence of
Gino Albini’s motive to kill Elayne Stec. He testified that the
Defendant told him that they were concerned Stec may give the
police information about Albini’s involvement in the murder of
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Thomas Trent at the Ivanhoe Restaurant. The murder at the
Ivanhoe occurred in November 1969 and Elayne Stec was killed on
June 2, 1970. The presumption is that Albini feared Stec would
testify against him, so he murdered her. However, the FBI did
not inform the police of Stec’s status as a possible witness
until May 28,1970 – a full six months after the Ivanhoe incident.
That information led to only one phone call to Stec’s mother, and
no evidence reflects that Stec knew the police wanted to talk to
her nor that Albini knew the police had learned of her identity.
In order for this motive theory to hold up, Albini must somehow
have known that the police were on to Stec, but nothing shows how
he would have known if in fact he did know. Moreover, if Albini
was so truly concerned about Stec’s standing as an eye witness,
it seems much more logical that he would have murdered her long
before June.
John Marinola and Patsy Purpera testified that Albini was a
skittish, feared and violent man who needed no provocation to act
violently. When asked if he feared Albini, Marinola replied, “So
don’t have a million people” (R. at 314). Willette testified
that Elayne Stec feared Albini because he was a vicious character
and refused to meet him out of her house. If she was too afraid
to meet him out of the house, one must seriously contemplate from
where she would summon the bravery to testify against such a man.
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This Court found itself faced with similar circumstances in
People v. Slaughter, 56 N.Y.2d 993, 453 N.Y.S.2d 632 (1982) where
the Court set aside the jury verdict and dismissed the
indictment. In Slaughter, the evidence at trial revealed that
the Defendant was a close friend of Sam Wysinger who had an
ongoing dispute with the victim Thompson. Minutes before the
slaying of Thompson, Wysinger and Slaughter were seen outside of
a bar when Thompson and friends passed them. Thompson proceeded
to another bar and while awaiting admission, was shot in the neck
with a shotgun. Friends of Thompson saw Wysinger and another
fleeing the scene, and the Defendant running in the vicinity of
the slaying with a pistol in his hand. Consequently, the
prosecutor attempted to show the existence of a motive in the
Defendant whose car had been set afire by unidentified people one
hour before the shooting. The Court rejected this as proper
proof of motive and contended that the only proof left to the
prosecutor was Slaughter’s friendship with Wysinger and his
presence in the area of the murder with a pistol. The Court
noted that Slaughter knew of neither Wysinger’s possession of the
shotgun or his intent to kill the victim, and then reasoned as
follows:
The evidence simply is insufficient to permit all the inferences . . . Nothing shows intent, or complicity, or knowledge of the pending crime. Nor is there strong proof of motive. These questions shed enough doubt on the existence of any motive on behalf of either the
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principal or the Defendant that the jury’s conclusion that the Defendant acted with an shared intent to kill must be reversed.
Id. at 995, 453 N.Y.S.2d at 632.
These same questions exist in the case at bar, and they shed
enough doubt on the existence of any motive on behalf of either
the principal or the Defendant that the jury’s conclusion that
the Defendant acted with a shared intent to kill must be
reversed.
CONCLUSION
The Defendant’s conviction should be reversed because no
reasonable jury could have concluded the Defendant’s guilt from
the circumstantial evidence. The evidence failed to show that
Gino Albini premeditated the murder of Elayne Stec, that the
Defendant knew of and shared in this scheme, or that the
Defendant had sufficient motive to support an inference of shared
intent. The presence of the Defendant at the scene of the crime
does not render him an accessory because Albini’s murderous
behavior may not be imputed to him. The record is also fatally
wanting of any evidence of the Defendant’s behavior at the moment
of the crime. These deficiencies lead one to only speculate
about the mind set of the Defendant Carmen LaBruna, and the
careful analysis required of a jury in evaluating the merits of
circumstantial evidence leaves no room for speculation.
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Therefore, the jury’s verdict was reached without sufficient
reason and must be set aside.
DATED: April 4, 2004Buffalo, New York
Respectfully Submitted,
_______________________LORA E. COMO, ESQ.Attorney for Defendant-AppellantMAILBOX 561
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