Opinion
March 7, 1966
Appeal by defendants from separate judgments of the County Court, Suffolk County, rendered April 17, 1964, convicting them of murder in the first degree and assault in the first degree, upon jury verdicts, and imposing sentence. Judgments affirmed. No opinion.
The defendants have been convicted of murder in the first degree and assault in the first degree. Their convictions rest entirely on the testimony of Francis Getch. Getch testified that on August 9, 1963 he and Louise Mangiamelli were riding as passengers in an automobile operated by Louis Mariani on Nesconsit Highway toward Port Jefferson at about 1:30 in the afternoon. Mariani was killed and Getch wounded, by shots fired from an automobile passing in the same direction. Getch identified the driver of the second automobile as the defendant Regina and testified that it was Regina who fired the shots; he identified the defendant Battista as one of the three other occupants in the Regina automobile. Getch's identification of Regina was derived from seeing Regina driving an automobile in Brooklyn on four occasions while Getch was standing on the sidewalk; and Getch's identification of Battista was based on seeing Battista 10 or 15 times over a two-year period. Getch had never met or talked with either Regina or Battista. Neither Regina nor Battista testified. Their defense was an alibi. Battista produced several witnesses who testified that on the day and hour of the crime Battista was working as a longshoreman at a pier in Brooklyn; and records of the Waterfront Commission and of the payroll of Battista's employer substantiated the fact of Battista's presence on the pier at that time. Regina produced two witnesses, his wife and a friend, who testified that he was at home in Commack at the time of the shooting. A jury question was thus presented by the evidence. Getch's credibility was assailed on several fronts: (1) he did not identify the defendants as the killers until more than a month after the crime and then only after he had been apprehended for a violation of parole and while in jail; (2) he had a sight of the defendants for only a few seconds during the volley of shots; and (3) he had been previously convicted of robbery in the third degree. Nevertheless, Getch's testimony was believed by the jury, and the defendants' alibi [evidence] was not. Louise Mangiamelli, the other eyewitness to the shooting, was not called by the People. Her testimony was elicited by the defendants and she testified that she did not see the occupants of the automobile from which the shots came. On cross-examination by the prosecution, she was asked, over objection, whether she had said to Getch immediately after the incident that "Fat Tony" (referring to Regina) had fired the shots at them and she answered in the negative. In rebuttal, the People recalled Getch, who testified, over objection, that Louise Mangiamelli had in fact made that statement to him. Getch's testimony clearly could be received, not as affirmative evidence of guilt, but only for the purpose of impeaching Louise Mangiamelli's testimony ( People v. Freeman, 9 N.Y.2d 600, 605; People v. Ferraro, 293 N.Y. 51, 56-57; Matter of Roge v. Valentine, 280 N.Y. 268, 276-277). The duty fell on the trial court to instruct the jury that the prior inconsistent statement was received only to impeach credibility and not as proof of that defendant's guilt ( People v. Tisdale, 18 A.D.2d 274, 276). The jury was not so informed by the trial court and this failure, under the circumstances of the case, appears to me to be prejudicial. The defendants were in no position to combat Getch's testimony of what Mrs. Mangiamelli said and it might well have been taken by the jury as corroborative of his identification of the defendants. The issues of fact were close and difficult, as was reflected by the fact that the jury did not render a verdict until two days had passed after the case had been given to them. Any evidence that might have been considered by the jurors as strengthening Getch's testimony would be decisive in leading them to a finding of guilt. Here, the use of Getch's rebuttal testimony for the corroboration of his identification of the defendants was open to the jury in the absence of instructions to the contrary. As was remarked in People v. Ferraro ( supra, p. 57): "we may not say that such an error did not affect the substantial rights of the defendant involved in the jury's determination of guilt." I am constrained, therefore, to vote to reverse and for a new trial.