People v. Monaco

83 A.D.2d 512, 441 N.Y.S.2d 251, 1981 N.Y. App. Div. LEXIS 14806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1981
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Greenfield, J.), rendered June 10, 1980, convicting defendant upon a jury verdict of manslaughter in the second degree and sentencing him to a maximum term of 10 years, reversed, on the law and the facts and in the exercise of discretion, and a new trial ordered. It will never be known whether defendant was correct in his assumption that the 13-year-old victim of this homicide, Ciprian Séptimo, Jr., had entered defendant’s apartment building as a burglar. It is certain that Séptimo was an intruder on defendant’s property and was seen by defendant on a platform outside of the third-floor rear windows of the building, apparently having gained this height by climbing up the protective bars of windows facing on an airshaft. It was here that he was shot by defendant. The jury acquitted defendant of murder in the second degree and manslaughter in the first degree and thus conclusively determined that he had had no intention of killing or even injuring the boy. It was within the admissible evidence for the jury to have found as it did that defendant was guilty of manslaughter in the second degree in that he recklessly caused Septimo’s death. We would not hesitate to affirm that verdict if it did not appear that defendant’s right to a fair trial and a possible acquittal of all charges was compromised by the admission of testimony that had little useful purpose and could only have aroused sympathy for the victim and his family and animus against the defendant. The medical examiner testified that Séptimo was five feet one and a half inches tall and weighed 80 pounds. He stated that he had heard that the boy suffered from a heart condition and asthma but that he had found no evidence of these diseases at the autopsy. This competent medical evidence, plus testimony that Séptimo was exceedingly deaf, would have been sufficient for the prosecution of these charges, especially since it could not be denied that, whatever Septimo’s physical condition, such conditions did not prevent him from activity as strenuous as making his way to this third-floor platform. Instead, Septimo’s school principal was permitted to testify that he was a delicate child, that he suffered from myopia and wore thick glasses, that “we had him marked for limited activity because Ciprian had open heart surgery [sic], he had a cardiac problem” and “[H]e was asthmatic as well”. Septimo’s younger sister, who was 12 when he was killed, was permitted to testify that her brother did not play any strenuous games, that he played only with children who were six to eight years old, and that he had “stitches” on his body “going from his chest around to his back”. The father of the victim was called to the stand although it was known that he was “very disturbed” by the homicide and that he harbored a belief that defendant and his brother had purchased this apartment building just to be able to kill his son. The father broke down on the stand. Some of this testimony was from witnesses incompetent to testify to Septimo’s physical condition; most of it conflicted with the available competent testimony, and taken as a whole it had no redeeming probative value. The environment so created must necessarily have prejudiced the defendant and a new trial is required. Concur — Sandler, Ross and Lynch, JJ.; Murphy, P. J., and Birns, J., dissent in separate memoranda as follows.