People v. Giuliano

102 A.D.2d 559, 477 N.Y.S.2d 358, 1984 N.Y. App. Div. LEXIS 18822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1984
• Status: Published

Opinions

OPINION OF THE COURT

Fein, J.

There should be an affirmance in this wholly circumstantial evidence case. If believed by the jury, as apparently it was, the evidence was sufficient to exclude to a moral certainty every conclusion other than guilt.

As stated in People v Kennedy (47 NY2d 196, 202): “[T]he conclusion of guilt must be consistent with and flow naturally from the proven facts, and * * * those facts viewed as a whole must exclude ‘to a moral certainty’ every conclusion other than guilt” (citing People v Cleague, 22 NY2d 363, 367; People v Benzinger, 36 NY2d 29).

The evidence is sufficiently discussed in the concurring and dissenting opinions.

There are three troublesome questions. The first two deal with motive. Defendant had no apparent motive. Olivieri, one of the witnesses against defendant, had a motive in that the victim apparently had some kind of an affair with Olivieri’s wife. Evidence of motive is relevant and material in circumstantial evidence cases in weighing evidence (People v Fitzgerald, 156 NY 253, 258). However, it is not dispositive. Weighing evidence is the function of a properly instructed jury. The evidence as to motive and as to the events was fully submitted to the jury.

The remaining question relates to the admission into evidence of police testimony relating defendant’s father’s response to defendant’s statement in the police precinct:

Defendant: “If I ever find out who ratted me out, I will kill the guy.”

Father: “That is why you are here, because of your fucking temper.”

The father’s statement was inadmissible. However, that is not dispositive. The error was harmless in our view (People v Crimmins, 36 NY2d 230, 242).

Obviously, there were serious questions of credibility. However, these were for the jury, even in a circumstantial evidence case. Once resolved against the defendant, we are required to accept their verdict, unless the testimony is insufficient or incredible as a matter of law. Such is not the case here.

As further stated in Kennedy (supra, p 203): “The circumstantial evidence * * * must be viewed in the light most favorable to the People since they have prevailed at trial and thus we are required to assume that the jury credited the People’s witnesses (People v Montanez, 41 NY2d 53, 57).”

Applying this standard to the circumstantial evidence in this case, the conviction should be affirmed.

Accordingly, the judgment of the Supreme Court, Bronx County (John Collins, J.), rendered January 13, 1983, convicting defendant after a jury trial of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of 6 to 18 years, should be affirmed.