People v. Monaco

¶1I cannot accept the majority’s conclusion that a new trial is warranted because of prejudicial errors occasioned by rulings of the trial court with respect to the admission of certain testimony. In the face of the substantial evidence of defendant’s guilt, the errors, if any, must be considered harmless and did not deny defendant a fair trial (People v Garcia, 72 AD2d 356, 358, affd 52 NY2d 716; see, generally, Harmless Error: The Need For A Uniform Standard, 53 St Johns L Rev 541). Defendant’s conviction for the *515crime of manslaughter in the second degree should be affirmed. The admission of testimony from the parochial school principal that the deceased child was myopic and was placed on limited school activity because of a cardiac condition, and from decedent’s sister that her brother did not play strenuous games, even if improper, in my opinion did not prejudice the jury nor contribute to the jury’s verdict that defendant was guilty of the crime of manslaughter in the second degree. In addition, there was no error in the testimony of deceased’s father as found by the majority. A fear had been expressed that if called to the stand, deceased’s father would testify that he harbored a belief that defendant and his brother had purchased the building just to be able to kill his son. The trial court preliminarily examined the witness outside the presence of the jury and then permitted the father to testify. The fact is that no such harbored belief was expressed by this witness in the presence of the jury and in no way was his testimony inappropriate or irrelevant. Although this witness was understandably emotional, the trial court commented upon the record that there was no outburst from the witness during a “carefully controlled” examination. The jury carefully evaluated the testimony, a conclusion which is supported by the fact that the jury acquitted defendant of the crime of murder in the second degree with which he was charged in the indictment, and manslaughter in the first degree, one of the lesser included crimes the jury was asked to consider. There appears to be no dispute that defendant, while on a fire escape of a building of which he was co-owner, fired the fatal shot at the deceased standing some 30 feet away on the edge of a roof covering an extension of the building. The defendant testified that deceased had moved one of his arms toward a rear pocket, but there is no evidence of any overt threatening gesture towards the defendant. In view of defendant’s claim of “justification”, the court carefully charged the jury that the burden was on the District Attorney to disprove the claim of justification beyond a reasonable doubt (Penal Law, § 25.00); that if defendant had, in the circumstances, a “reasonable belief” that he was confronted by a burglar threatening him with the use of “deadly physical force” (Penal Law, § 35.15) or that defendant had a “reasonable belief” that it was necessary to fire his weapon to prevent or terminate a burglary or an attempted burglary (Penal Law, § 35.20), defendant should be acquitted of the homicide charges filed against him. The physical evidence amply supported the verdict that the shooting was without justification. At the time the fatal shot was fired, the defendant was on a fire escape with one arm encircling a rung (somewhat above the level of the deceased) “to get”, as he told a detective, “a better shot” at the deceased who was standing 30 feet away when the rifle “had gone off.” Under these circumstances, the jury found beyond a reasonable doubt that the defendant could not have had a reasonable belief that the deceased threatened the defendant’s life or that the shot was fired to prevent or terminate a burglary. The jury was instructed properly that the defendant’s “reasonable belief” had to rest on what he saw or knew when he used his rifle. Although the deceased had in his pocket a screwdriver, 10 keys and an otoscope (a physician’s flashlight for illuminating small enclosed areas of the body), items of which the jury was informed (or which were in evidence), the jury was instructed to ignore these items in considering what the defendant “reasonably believed” at the time — because the defendant could not have known of them. The items were discovered only when the deceased was searched after his body was found. The court instructed the jury not to consider, on this issue, other irrelevances; for example, that deceased was a “deaf mute”, although telling the jury that may have explained the deceased’s “failure to halt when commanded to do so.” The jury apparently accepted defendant’s claim that he had not intentionally fired the rifle. Therefore, the evidence established beyond a *516reasonable doubt that defendant “recklessly” (Penal Law, § 15.05, subd 3) and without justification caused the death of Ciprian Séptimo, Jr. (Penal Law, § 125.15). One final thought. Defendant was sentenced to an indeterminate term not to exceed 10 years. In imposing sentence the trial court accused defendant of “vigilantism” and said he had “stalked” the deceased. These observations might be appropriate if defendant had been found guilty of an intentional crime, such as murder in the second degree (Penal Law, § 125.25) or manslaughter in the first degree (Penal Law, § 125.20). But he was acquitted of those crimes. Hence, it appears that the factual bases expressed by the court upon which the sentence was imposed were inappropriate, as the remarks of the court did not jibe with the verdict of the jury. We have been considering a case with tragic overtones, a confrontation of a boy apparently bent on mischief and a property owner utilizing a most drastic means to safeguard his property from any intruder. Although one may understand the defendant’s motive, there was no justification to use a firearm against an intruder who at the time posed no immediate threat either to life or property. Possession of a weapon invites misuse of that weapon. There was such an invitation and misuse in this case. However, the circumstances warrant the imposition of a lesser indeterminate sentence (see People v Hazen, 79 AD2d 945).