People v. Buono

121 Misc. 2d 854, 469 N.Y.S.2d 311, 1983 N.Y. Misc. LEXIS 4014
CourtNew York Supreme Court
DecidedNovember 15, 1983
StatusPublished
Cited by2 cases

This text of 121 Misc. 2d 854 (People v. Buono) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Buono, 121 Misc. 2d 854, 469 N.Y.S.2d 311, 1983 N.Y. Misc. LEXIS 4014 (N.Y. Super. Ct. 1983).

Opinion

OPINION OF THE COURT

Jerome L. Reinstein, J.

After trial to a jury defendant was convicted of murdering Nathan Masselli on August 25, 1982. During the course of the trial two novel issues arose involving applications by the People for leave to introduce evidence despite their failure to give timely statutory notices of such intent. For the reasons hereinbelow stated leave was granted in one instance, but not in the other.

Defendant was an early suspect in the Masselli killing and within a few days after the homicide he and other [855]*855members of a local social club, where defendant claimed he spent the evening of August 25, were interviewed by FBI agents. Defendant was interviewed on August 30, 1982 by Special Agent Paul William Deeper, who filed a written report of such interview which was essentially exculpatory in nature. In due course, copies of said report were given to the Bronx District Attorney who forwarded a copy thereof to defense counsel.

Defendant was arrested for the Masselli murder on September 15, 1982, and indicted shortly thereafter. On October 1, 1982, defendant served a timely “notice of alibi” pursuant to CPL 250.20 (subd 1), listing 14 alibi witnesses. No reciprocal notice of proposed rebuttal witnesses was ever served by the People. (See CPL 250.20, subd 2.)

One of the last witnesses scheduled by the People on their direct case was Agent Deeper. It was anticipated (as detailed in the agent’s written report) that Deeper would only testify to defendant’s admission to (a) having seen Masselli outside of the social club approximately one hour prior to his death and (b) discussing with Masselli a pending Federal Grand Jury investigation at which Masselli’s father, a Federal prisoner, was scheduled to testify. On the morning of his scheduled appearance as a witness Agent Deeper advised the trial Assistant District Attorney that he also recalled a second “informal” conversation with the defendant which took place 5 or 10 minutes after the “formal” interview was concluded on August 30, 1982. During this second conversation, which the agent described as mere “bantering”, he asked the defendant how the Masselli killing could have taken place in view of defendant’s close relationship with the Masselli family and the fact that all were involved in organized crime. Defendant allegedly responded, “if you believe those things — if an order comes down you have to do what you have to do.”

The court and defense counsel were immediately notified of this second alleged statement and of the District Attorney’s intent to offer it at trial. Defense counsel strenuously objected claiming lack of notice. (See CPL 710.30, subd 1, par [a].) The People argued that good cause had been shown for the failure to give prior notice. (See CPL 710.30, subd 2.)

[856]*856A hearing was thereupon held, outside the presence of the jury, to determine if the statement should be allowed to be introduced at the trial, at which Agent Leeper, the supervising agent of the FBI’s New Rochelle office, the New York City detective in charge of the Masselli homicide investigation and the former chief of the Bronx District Attorney’s Homicide Bureau testified. All agreed that the city police and the FBI co-operated in a parallel investigation into the homicide. The city police sought the perpetrators of the homicide, while the FBI investigated the possibility of an obstruction of justice charge involving a pending Federal investigation of possible violations of law by a member of the United States Cabinet. Joint interviews of witnesses were sometimes conducted to avoid duplication of effort and some, but not all, follow-up reports were exchanged. No joint task force (which involves a written memorandum of understanding) was ever formed under a single supervisor and each investigative agency acted independently, though co-operatively. The FBI “wound down” its investigation in October or November, 1982, and formally concluded it in February, 1983.

At the end of the People’s case the defendant called 3 of the 14 alibi witnesses on his notice of alibi list, all of whom testified that the defendant was at the social club on August 25, 1982, at the time Masselli was murdered several miles away. One of the witnesses, Katherine Huested, denied ever telling an FBI agent she was not at the club that evening. After the defendant rested the People stated their intention to call the FBI agent who had interviewed Huested and, as a rebuttal witness to discredit defendant’s alibi, one of the other persons listed on defendant’s notice of alibi. The defense objected to the receipt of such evidence, again arguing the lack of statutory notice.

I. THE STATEMENT

“When the People intend to offer at trial evidence of statements made by a defendant to a police officer, which if involuntarily made would render the evidence of those statements suppressible, they ‘must serve upon the defendant a notice of such intention’ before trial (CPL 710.30, subds 1,2). Only upon a showing of ‘good cause’ may the court permit service of the notice during trial with a [857]*857reasonable opportunity to make a suppression motion during trial.” (People v Briggs, 38 NY2d 319, 322.) Although “[t]he obvious purpose of the statute is to afford a defendant adequate time in preparing his case in respect to the voluntariness of a confession or admission” (People v Greer, 42 NY2d 170,178), “independent of considerations of challenging the voluntariness of his statements, considerations of fair play demand that a possibly unaware defendant be apprised before trial of any incriminating statements intended to be offered against him” (People v Briggs, supra, at p 323).

In Briggs (supra, p 324) a “lack of continuity” in a prosecutor’s office was held to be the type of “office failure” which did not constitute good cause for a failure to give the required pretrial notice. In People v Spruill (47 NY2d 869) this concept of office failure was expanded to include the failure of a police officer to notify the prosecutor of defendant’s confession prior to trial.

. The question presented in this case, for which there appears to be no prior New York precedent, is whether this principle should be further enlarged to encompass noncommunication by a Federal investigatory agency.

In People v McLaurin (38 NY2d 123), which was cited by the Spruill court (47 NY2d 869, supra), it was held (on a speedy trial issue) that a New York prosecutor should not be charged with knowledge of defendant’s New Jersey incarceration (although such knowledge on the part of the police department would be imputed to the District Attorney’s office). In another seemingly analogous situation (involving the right to counsel) it was recently held that “[a]ctual knowledge of one police agency will not be constructively imputed to another unless the two agencies are working so closely that it can be deemed a joint investigation” (People v Fuschino, 59 NY2d 91, 99).

Since the New York City Police Department and the FBI were involved in parallel (albeit co-operative) investigations, under separate commands, rather than a joint investigation, there appeared to be no basis or justification for imputing knowledge by the FBI to the New York City Police Department and then through the latter to the Bronx District Attorney’s office; and it was so held. Defen[858]

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Cite This Page — Counsel Stack

Bluebook (online)
121 Misc. 2d 854, 469 N.Y.S.2d 311, 1983 N.Y. Misc. LEXIS 4014, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-buono-nysupct-1983.