People v. Simonds

At approximately 6:00 a.m., on November 8, 1984, in the vicinity of 686 Rosewood Avenue, in Bronx County, the police found the lifeless body of Mr. Phillip Sena (Mr. Sena) lying in a pool of blood. Thereafter, an autopsy indicated the cause of death to be a gunshot wound in the left side of Mr. Sena’s face, and, from his body the Medical Examiner recovered a .44 caliber bullet. In the opinion of a ballistics expert, the victim had been shot at close range. Since police examination of Mr. Sena’s body indicated he was wearing a silver Seiko watch, and, in his pockets were $40 in United States currency, as well as a wallet, which con [237] tained numerous credit cards, they concluded robbery had probably not been the motive for the slaying. Thereafter, during the course of an unrelated arson investigation, allegedly involving a Mr. Anthony Tarantino, the police came into contact with Mr. Gerald Moore (Mr. Moore), who was alleged to have information about the murder of Mr. Sena. When the police questioned Mr. Moore, he stated he had worked for Mr. Anthony Tarantino as a marihuana dealer, and Mr. Anthony Tarantino, sometime in September 1984, had assigned the defendant to watch and protect him, while he did his selling. Furthermore, Mr. Moore stated that, on November 9, 1984, which was a date he particularly remembered, since it was the day before his birthday, defendant told him that defendant had killed a man on Rosewood Avenue, as a result of receiving authorization from Mr. Anthony Tarantino, and defendant was to be rewarded for carrying out that assignment. At trial, Mr. Moore testified in pertinent part, "He [defendant] described the shooting that he did on Rosewood Avenue. He said he grabbed * * * the victim by the arm, [and with] a large caliber pistol * * * shot [the victim] in the face”. Also, Mr. Moore testified at trial that, subsequent to his conversation with the defendant about the murder, he overheard "Mr. [Anthony] Tarantino [tell defendant] * * * 'don’t mention Rosewood to anybody, nobody [is] supposed to know about this’ ”. Mr. Moore has been arrested four times, and has been convicted of possession of marihuana and reckless endangerment of a minor. Our examination of the record indicates that the reason Mr. Moore provided the police with information was to try and prevent Mr. Tarantino from killing him. According to Mr. Moore, Mr. Anthony Tarantino had choked him into unconsciousness, and then had threatened to kill him, over a $200 debt Mr. Anthony Tarantino claimed Mr. Moore owed him. In his trial testimony, Mr. Moore stated that the police gave him a total of $200 for the information. On February 5, 1985, pursuant to a search warrant, the police searched Mr. Anthony Tarantino’s apartment, and, inter alia, found two items which appeared to be relevant to the murder of Mr. Sena. The first item was a letter from defendant to Mr. Carmine Tarantino, who was Mr. Anthony Tarantino’s brother. During the trial, this letter was admitted into evidence, pursuant to a [238] stipulation by which the defense conceded defendant had written it. In pertinent part, defendant wrote: "Carmine * * * "When I left N.Y.C. I returned to Norfolk[, Virginia] to stay with some friends and take care of this warrant I found here. "However, the first time I went to court I was picked up by Norfolk detectives for a warrant that New York has on me for second-degree murder * * * "Please tell your brother [Mr. Anthony Tarantino] where I am and what happened. I am sitting here in jail, facing extradition to New York. I don’t know what has happened there so please tell me in a letter what Anthony wants me to do, fight the extradition and stay here for a while or sign the papers and come on up to the City. "Either way, you and Anthony should know I’ll keep my mouth shot [sic], regardless of what happens”. The second item was a bankbook of Ms. Christine Sena, who, a detective testified at trial, was "the wife of Phillip Sena, who was murdered”. By indictment, dated February 11, 1985, a Bronx County Grand Jury accused defendant of slaying Mr. Sena, and alleged, in that connection, that defendant had committed the crimes of murder in the second degree (Penal Law § 125.25), criminal possession of a weapon in the second degree (Penal Law § 265.03), and criminal use of a firearm in the second degree (Penal Law § 265.08). Following indictment, and defendant’s return to New York City from Norfolk, Virginia, as a result of extradition proceedings, the instant trial commenced in June 1986. At this trial, in substance, Mr. Moore was the principal witness for the People against defendant, and his testimony was corroborated by such evidence as the large caliber bullet, mentioned supra, which had been recovered from the victim’s body, and the letter discussed and quoted supra, written by defendant to Mr. Carmine Tarantino. While the defendant did not testify, he did present a defense, which consisted solely of a photograph, and a statement made by Mr. Moore to the police. Subsequently, the jury found defendant guilty of the crime of murder in the second degree. On appeal, the defendant does not challenge either the weight or sufficiency of the evidence against him. However, the defendant does contend that the trial court committed [239] reversible error in denying his trial counsel’s request, pursuant to Brady v Maryland (373 US 83 [1963]), for documentary material in the possession of the police concerning their relationship with Mr. Moore; and the trial court denied him the effective assistance of counsel, by barring his trial counsel from discussing on summation certain aspects of the prosecution case. Furthermore, defendant contends his sentence was excessive, and improperly included a surcharge. After reviewing the record, we find defendant’s three points to be without merit. Our dissenting colleague contends that the determination of this appeal should be held in abeyance, and the matter remanded to determine whether Rosario material was withheld from the defense. Since the defendant has not argued, at either the trial level or before us, that he was denied Rosario material, we find no justification to remand for a Rosario hearing. As mentioned, supra, the defendant did raise a Brady issue. The standards used to determine whether a Brady or a Rosario violation has occurred are different, since "Brady * * * involves a constitutional principle [while] the Rosario rule is based upon 'policy considerations’ and 'a right sense of justice’ (People v Rosario [9 NY2d 286, 289 (1961), cert denied 368 US 866 (1961)] * * * not constitutional mandates or guarantees” (People v Howard, 127 AD2d 109, 117 [1st Dept 1987]). In Brady (supra, at 87) the United States Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment”. Thereafter, the United States Supreme Court in United States v Bagley (473 US 667 [1985]) expanded the Brady principle "to require the prosecution to deliver, not only exculpatory matter, but also material evidence which impeaches the credibility of a prosecution witness” (People v Howard, supra, at 113). The theory of the defense "was that Moore had fabricated his story”. Therefore, defense trial counsel contended that, in order to impeach Mr. Moore’s credibility "by showing [his] bias or interest” (United States v Bagley, supra, at 676), he needed a certain DD-5 and the police investigative files concerning Mr. Moore. Based upon our examination of the record, we find that, even without the sought-after documents, significant evidence of Mr. Moore’s "interest” was before the jury for consideration in evaluating his credibility. This evidence [240] consisted of such testimony, as mentioned supra, of Mr. Moore that he was a paid police informant, and the reason he provided the police with information was to try and prevent Mr. Anthony Tarantino from killing him. In addition, the jury had before it evidence indicating that Mr. Moore was a drug dealer, with a record of arrests and convictions. In view of the evidence, which we discussed supra, concerning Mr. Moore’s "interest” and character, we find that, even if the requested documents had been produced, they would not have changed "the result of the [trial]” (United States v Bagley, supra, at 684). Furthermore, we find that defense trial counsel made an insufficient showing to entitle him to these documents, since he did not convincingly indicate that they contained information that would have added anything of significance to the evidence already before the jury relating to Mr. Moore’s "interest”. Concur — Sullivan, Ross and Asch, JJ.