People v. Gonzales

92 A.D.2d 873, 459 N.Y.S.2d 823, 1983 N.Y. App. Div. LEXIS 17252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1983
• Status: Published

Opinions

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Bernstein, J.), rendered August 30,1979, convicting him of manslaughter in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered. Defendant was charged with the crimes of murder in the second degree (two counts), assault in the second degree (two counts), and criminal possession of a weapon in the second degree, stemming from the death of Rigoberto Negron by gunshot and bullet wounds received by Julio Negron (decedent’s brother) during a melee on a street in Brooklyn. A mistrial was declared after the first trial when the jury declared that it was hopelessly deadlocked. This appeal is from the judgment convicting defendant, upon a jury verdict after retrial, of manslaughter in the first degree and criminal possession of a weapon in the second degree. The thrust of the People’s case was that the motive for defendant’s actions at the time was to avenge an attack upon him by the Negron brothers three nights before. The People also asserted that defendant, by taking a trip to Puerto Rico the morning after the fatal shooting, demonstrated consciousness of guilt and did so to avoid being apprehended. Both on retrial and on appeal defendant claimed that he acted in self-defense in that he fired at the Negron brothers only after they fired at him and that he had wrested a gun from Julio Negron. He also asserted that the Negron brothers had fired at him during their encounter three nights before. The People’s sole witness to the fatal shooting was Luis Sanchez. He testified that on the evening of April 14, 1978, while a street fight was in progress outside a social club in which neither defendant nor the Negron brothers were involved, he saw defendant approach one of the brothers. After an interval of a few seconds he saw defendant take out a black gun and start “shooting crazy” approximately four times in the Negrons’ direction before taking flight. He saw “Riga” Negron (decedent) fall to the ground, Rigo’s brother “Kiki” was wounded in the hand, and Sanchez himself was wounded in the left leg. Serious error was committed by the trial court in sustaining an objection by the prosecutor which precluded defendant from testifying on direct examination as to why he went to Puerto Rico the day after Rigo Negron was fatally wounded. Such refusal was especially devastating in view of the fact that (1) in his opening statement the prosecutor repeatedly emphasized defendant’s “flight” to Puerto Rico, (2) in his summation the prosecutor pointedly referred to the defendant’s going to Puerto Rico with his wife the day after the fatal shooting, and added, inter alia: “Because he did the firing, he did the shooting, he knew that he did something wrong, and he knew he wasn’t going to come back” and (3) the trial court, after referring to the trial testimony of Detective Milano pertaining to his ascertaining from an investigation that defendant, after the incident, was no longer in New York, but was living in Puerto Rico, charged the jury, inter alia: “The rule is that evidence of flight is admissible, and when unexplained is deemed indicative of a consciousness of guilt, and, hence, guilt itself.” Evidence should be admitted which is probative of an explanation for an accused’s flight other than consciousness of guilt of the crimes allegedly committed by him (see People v Gordon, 77 AD2d 662, 664). When the prosecution has offered evidence of flight of an accused as tending to show guilt, the accused may explain his reason for fleeing and is entitled to the benefit of any explanation of his flight consistent with his innocence (1 Wharton’s Criminal Evidence [13th ed], § 214; cf. People v Yazum, 13 NY2d 302). We note at this time that the proof of defendant’s guilt was not overwhelming. Concededly, the People did produce an eyewitness (Sanchez) whose testimony incriminated defendant. However, lending strong credence to defendant’s version of the altercation, i.e., that he fired the lethal shots at the Negrons in self-defense only after they had fired at him, was other evidence adduced on his behalf that the Negrons had not only assaulted him with a stick three nights earlier but a short time after that assault had also fired two shots at him and his “wife”. Moreover, evidence of blood was found, not in front of the social club where the fatal shooting of Rigoberto Negron allegedly took place, but rather in front of the adjacent building where defendant resided. Such fact supported defendant’s statement as to the location of his previous encounter with the Negrons in which he was the person assaulted. Thus we cannot say at this juncture that the error was harmless beyond a reasonable doubt (People v Shields, 81 AD2d 870, 871; see People v Crimmins, 36 NY2d 230, 238-242). Therefore, a new trial is required. We find defendant’s other contentions to be without merit. Titone, J. P., Gibbons and Rubin, JJ., concur.