Opinion
050078.
Decided June 30, 2005.
Hon. Jeanine Pirro, District Attorney, Westchester County, White Plains, New York, Patricia M. Murphy, Esq. Assistant District Attorney Marilyn Reader, Esq. Larchmont, New York, Attorney for Defendant.
Twelve-year old Orlandito Rosario Maldonado of Yonkers was reported missing on November 2, 1998. On January 23, 1999, Orlandito's heavily decomposed body was discovered in a ditch along side the Saw Mill River Parkway in the Village of Dobbs Ferry. His back, legs and torso were exposed. Much of the body was missing. A rope was around his neck.
Dental records identified the remains as those of Orlandito. According to the Medical Examiner, the date of Orlandito's death was at least one month prior to its discovery.
From the outset, Robert DeRosario, defendant herein, was the prime suspect.
Chief George Longworth of the Dobbs Ferry Police Department was in charge of the investigation into the death of Orlandito. He supervised the investigative efforts of over five law enforcement agencies. Assistant District Attorney Robert Prisco, the Deputy Chief of the Homicide Bureau, was the designated legal advisor to the police. In January and February of 1999, search warrants were presented for a number of locations, including the defendant's residence and computer, located at 331 Walnut Street in the City of Yonkers. People congregated outside defendant's residence while the police executed the search warrants at 331 Walnut Street on January 27, 1999. One of the people present was defendant's childhood friend, Jeffrey Ciruzzi. Jeffrey Ciruzzi was, and currently is, a uniformed member of the Yonkers Police Department. Ciruzzi was not on duty at the time. Defendant told Ciruzzi that he never knew the kid, that the police were engaging in a witch hunt, and that he had no idea why the police were searching his apartment.
As a result of a search of defendant's computer, a series of names on defendant's buddy list were identified and interviewed. The investigation revealed a number of boys under the age of seventeen who had been sexually abused by the defendant.
One individual reported that her sons had been abused by the defendant. Defendant asked one individual to speak to the victims to tell them not to follow through with the charges. This individual also gave to the police letters from the defendant to his victims threatening them. Some of the victims refused to cooperate because they had been threatened by defendant when they tried to end the relationship.
Five indictments were filed during 1999 accusing the defendant of approximately 108 counts of crimes committed against twelve different boys under the age of seventeen. The first indictment was filed on February 10, 1999.
Sometime during the end of February, 1999, defendant was transported from the Westchester County Jail in Valhalla to Yonkers City Court by his friend, Jeffrey Ciruzzi, who was assigned as a detention officer for the Police Department. Defendant was handcuffed and shackled. Defendant spoke to Ciruzzi while en route to Court. While other prisoners were being transported in other prisoner vans, defendant was the only prisoner in Ciruzzi's van. While being escorted within the Yonkers Courthouse, defendant and Ciruzzi engaged in a conversation wherein defendant told Ciruzzi he was upset and told Ciruzzi he had seen Orlandito in front of the store in front of his house, which Ciruzzi understood to mean the candy store which is located in front of 331 Walnut Street. Ciruzzi may have initiated this conversation and may have asked the defendant what was going on with his case.
In June of 1999, additional warrants were presented to re-search 331 Walnut Street. At the end of 1999, the FBI reported that the composition of the rope found around Orlandito's neck did not match the composition of the rope found in defendant's apartment.
In April of 2000, Robert Waters, an inmate at Rikers, wrote to the District Attorney's Office to inform them of statements defendant had made to Waters some months prior to April, 2000, concerning the killing of a young boy who was left in a ditch. Waters was brought in for an interview in the District Attorney's Office on April 24, 2000. Members of law enforcement were present, including Sergeant Leahy of the Dobbs Ferry Police Department. Waters repeated what defendant had told him. Waters related that he had notified a number of law enforcement agencies about DeRosario's statements. Waters also portrayed himself as someone who has cooperated with law enforcement agencies in the past. Waters thereafter continued to write to Leahy, but added nothing new about DeRosario. Leahy did not speak to Waters or see him after the April meeting.
On July 21, 2000, defendant was sentenced to a determinate sentence of ten years following his plea of guilty to various counts of the indictments involving the twelve victims. The investigation into the murder of Orlandito continued without much success. By the end of 2000, hundreds of civilians had been interviewed and many re-interviewed. The police were constantly pursuing leads. Members of law enforcement had traveled to Florida, Georgia and the Carolinas to follow up on leads. The forensic analyses of the hundreds of items of property recovered pursuant to the execution of the search warrants did not provide additional evidence. The Chief also described the efforts to obtain the opinion of a knot expert who is a member of the Canadian Royal Mounted Police. The repeated searches of the scene where Orlandito's body was found did not result in the recovery of evidence linking the defendant to the homicide. The Chief enlisted the aid of the Department of Corrections to monitor the defendant's mail and phone calls. They also placed a confidential informant in the correctional facility where defendant was housed.
According to Assistant District Attorney Prisco, they had three victims who tied defendant to the death of Orlandito. They had other witnesses who saw defendant cleaning out his van which was the van believed to have transported Orlandito's body. They had the statements made by defendant to his fellow prison inmate, Waters. The prosecutor's assessment of the case was that they had probable cause for an arrest but it would be a difficult prosecution for a number of reasons: the age and fragile state of two of the witnesses/victims, the lack of forensic evidence, and the credibility of Waters' testimony to a jury. Thus, the prosecutors directed the police to continue to investigate. This admonition was repeated by the prosecution. In December, 2001 Deputy District Attorney Prisco was reassigned.
In April, 2002, Chief Longworth sent his detectives to the National Center for Missing and Exploited Children in Alexandria, Va., for the purpose of having the case reviewed. A roundtable discussion was held and in June, 2002, the Center issued its report. The report included a recommendation of exploring the possibility of a federal prosecution relying on the federal rules of evidence if a state prosecution was not viable. That issue was explored by the Chief Assistant District Attorney. The Chief Assistant District Attorney also assigned an experienced homicide investigator to review the case to give it a fresh look. In November, 2002 into 2003, the homicide investigator and Sergeant Leahy re-interviewed witnesses. Two witnesses changed their statements on an issue related to a sighting of Orlandito during a critical time period.
The Chief explained that the investigation was worked on every month. He asked Crimestoppers to offer a reward. According to the Chief, people with information may not have come forward because there was confusion in the public's mind that Orlandito's murder had been solved since there was media coverage concerning the defendant's conviction and sentence on the unrelated sexual abuse counts. It was also the belief of law enforcement that the difficulty in locating witnesses may have been caused by fear of the defendant.
In January, 2004, Deputy District Attorney Robert Neary was assigned to the case. A meeting was held with the top prosecutors in the District Attorney's office to assess the case and determine a course of action.
The District Attorney thereafter determined that the time had come to present the case to a grand jury. On May 13, 2004, an indictment was filed charging the defendant with two counts of murder in the second degree, one count premised on an intentional theory and an alternative count premised on a depraved mind theory.
On May 21, 2004, a search warrant was issued to seize the defendant's shoelaces in order to conduct a comparison of the bow on the defendant's shoelace and the bow found around Orlandito's neck to be submitted for an analysis by the Canadian knot expert.
On June 1, 2004, the People served and filed ten 710.30 notices.
On June 3, 2004, defendant was arraigned upon the indictment, and the People announced their readiness for trial. Defendant pled not guilty to all counts.
In September, 2004, the District Attorney's office received a letter from an inmate, Joel Grubert, who had been housed with the defendant in the Queens House of Detention during 1999-2000. Grubert related that the defendant told him how he had killed a young boy in his van. Grubert was interviewed by Detective Cherico and thereafter brought to the District Attorney's office for a more in-depth interview on November 3, 2004. After the meeting, there was no further contact with Grubert.
In November, 2004, the District Attorney's office received a letter postmarked November 10, from Juan Sanchez, who was housed with the defendant at Sing Sing. The letter stated that the defendant told Sanchez about how he killed a young boy and dumped the body. Sanchez was interviewed in Sing Sing on November 17. He was re-interviewed in the District Attorney's office. Sanchez was instructed not to elicit any information from defendant. He was told just to listen. Sanchez continued to supply information to the District Attorney as evidenced by letters postmarked November 22 and December 4.
On October 27, 2004, the District Attorney's office received the defendant's motion seeking omnibus relief.
By decision and order filed January 3, 2005, the Hon. Kenneth Lange ordered, inter alia, a hearing with regard to the statements the defendant made to Waters; a Franks hearing on the search warrant issued on May 21, 2004, and a Wade hearing. The decision also dismissed the depraved indifference murder count pursuant to the Court of Appeals holding in People v. Payne ( 3 NY3d 88) and People v. Gonzales ( 1 NY3d 464).
The Wade hearing was thereafter withdrawn upon stipulation of the defendant.
Following the dismissal of the depraved mind murder count, the People presented evidence of defendant's crimes to another grand jury. The grand jury voted a true bill charging the defendant with murder in the second degree (felony murder) and two counts of kidnapping in first degree. The indictment was filed on February 17, 2005.
On February 22, 2005, defendant was arraigned upon the second indictment and the People announced their readiness for trial.
On March 3, 2005, the People served and filed six 710.30 notices which represented the statements made by defendant to the inmates Waters, Grubert and Sanchez and the two statements made by defendant to Ciruzzi.
By decision and order dated March 8, 2005, Indictment No. 04-0586 (the intentional murder count) was consolidated with the second indictment, upon an application by the People. By decision and order dated May 18, 2005, the Hon. Janet DiFiore ordered a hearing to determine whether the People had demonstrated sufficient reasons for the late filing of the 710.30 notices; a hearing to determine whether the inmates acted as agents of the police; a hearing on the statements made to Police Officer Ciruzzi. By decision dated May 19, 2005, Justice DiFiore ordered a Singer hearing.
The ordered hearings were held on June 6, June 7, and June 9, 2005. The following witnesses testified: Police Officer Jeffrey Ciruzzi of the Yonkers Police Department, Sergeant Thomas Leahy of the Dobbs Ferry Police Department, Detective John Cherico of the Dobbs Ferry Police Department, Chief George Longworth of the Dobbs Ferry Police Department, Deputy District Attorney Robert Prisco, and Deputy District Attorney Robert Neary.
Singer Hearing
Defendant contends that the 64-month delay in obtaining an indictment was unjustified and a denial of due process. He was a suspect from the point Orlandito was reported missing. The evidence against him has existed since the year 2000. He has been prejudiced through the loss of alibi witnesses.
Under New York law, "unreasonable delay in prosecuting a defendant constitutes a denial of due process of law" ( People v. Staley, 41 NY2d 789). An unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown ( People v. Singer, 44 NY2d at 253-254). Where there has been a prolonged delay, the law imposes a burden on the prosecution to establish good cause ( People v. Singer supra at 254). The Court of Appeals has excused prolonged pre-indictment delay where "there is a need to investigate to discover the offender, to eliminate unfounded charges and to gather sufficient evidence prior to the commencement of a prosecution." Singer, Id. "Thus, we [the Court] stated [in Singer] that a `determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense . . .' ( People v. Lesiuk, 81 NY2d 485 at 490).
In balancing the merits of a defendant's claim of unjustified prosecutorial delay, "courts must engage in a sensitive weighing process of the diversified factors in the particular case" ( People v. Vernace, 96 NY2d 886, 887). In Vernace the Court of Appeals restated the factors set forth in People v. Taranovich, 37 NY2d 442, 445:1) the extent of the delay; 2) the reason for the delay; 3) the nature of the underlying charges; 4) whether there has been an extended period of pretrial incarceration; and 5) whether there is any indication that the defense has been impaired by reason of the delay ( People v. Vernace, 96 NY2d 886, 887).
Although the delay has been extensive, the underlying charge involves the murder of a twelve-year old boy. The lack of any statute of limitations for the crime of murder is indicative of the priority given by the state to investigate fully this crime before a prosecution is commenced ( People v. David Torres, 9/20/99 New York Law Journal, p. 32 (col.4), Supreme Court, Kings County, (Marrus, J.) There has been no pretrial incarceration since defendant was convicted and sentenced on unrelated crimes.
Extensive testimony was adduced concerning the efforts made by law enforcement over a five-year period to obtain evidence in addition to the evidence recovered early in the investigation. The reason for the continued investigation was their assessment that the prosecution case was weak. Although there was probable cause for an arrest the proof consisted of fearful adolescents and an inmate witness. There was no forensic evidence. "A prosecuting authority has no duty to arrest a suspect as soon as probable cause exists and before the prosecutor is satisfied that there is enough evidence to prove the suspect's guilt beyond a reasonable doubt" ( People v. Hoff, 110 AD2d 782). The investigation never languished from inattention. Chief Longworth described in detail his department's determined and consistent effort to obtain new evidence. Witnesses were re-interviewed. Locations were re-searched. The neighborhood was re-canvassed. New personnel were asked to take another look at the case. Cooperation with other authorities was obtained. The testimony established there was a determined effort to gather forensic evidence. The lead prosecutor testified that at the time of the second grand jury presentation in 2005, forensic analysis of evidence submitted to the lab for testing was still outstanding. Thus, the People have set forth a reasonable and justifiable explanation for the over five-year pre-indictment delay. Longer delays have been upheld. Indeed, People v. Vernace was a case involving a 17-year pre-indictment delay. See, also, People v. Torres, supra (nine-year delay); People v. Brown, 209 AD2d 233 (nine-year delay); People v. Frazier, 159 AD2d 1017 (eleven-year delay); People v. Almonte, 190 Misc 2d 783 (ten-year delay).
Additionally, there is no evidence in this record that the defense has been impaired. Although he claims to have lost potential alibi witnesses there was no proof adduced during the hearing of the proposed testimony of the witnesses. In any event, the People represented during the hearing they are aware of the location of all but two of the defendant's proposed witnesses and the People were making continued efforts to locate the witnesses. Additionally, there was no proof that defendant endeavored to package a plea bargain including the murder of Orlandito when he pled guilty to the sex crimes involving the twelve minors. Although the defendant points to the extensive publicity targeting the defendant as a suspect, Chief Longworth testified that the publicity of the arrest of the defendant on the unrelated charges hampered their investigation because witnesses who may have had information did not report whatever information they had under the mistaken belief that defendant had been arrested for the murder of Orlandito. Moreover, the stigma of being a suspect has little relevance to defendant who is a convicted and sentenced sex offender.
Accordingly, defendant's motion to dismiss the indictments on the grounds of pre-indictment delay is denied.
Admissibility of Statements made by defendant to Waters, Grubert and Sanchez
Defendant contends that the inmates acted as agents of the police and therefore violated his Sixth Amendment guarantee to the assistance of counsel. He contends the statements are not admissible under Massiah v. United States, 377 US 201 and People v. Cardona, 41 NY2d 333.
At the outset, the Court notes that there is no issue that the indelible right to counsel had attached since it was stipulated at the conclusion of the hearing that defendant was represented by an attorney in the investigation into the death of Orlandito. Furthermore, the People's papers in opposition to the motion did not raise an issue in this regard.
In each case, the inmate initiated the contact with the District Attorney concerning information about defendant. The information provided by Grubert and Waters was limited to statements made by the defendant during a period prior to the inmate's contact with the District Attorney and during a time that the inmate and the defendant were housed in the same correctional facility. Thus, the government's role was limited to the passive receipt of the information. "Where an informer works independently of the prosecution, provides information on his own initiative, and the government's role is limited to the passive receipt of such information, the informer is not as a matter of law an agent of the government" ( People v. Cardona, supra). Thus, Grubert and Waters did not act as agents of the government and therefore the people were not required to serve defendant with a CPL 710.30 notice ( see, People v. Mirenda, 23 NY2d 439).
Accordingly, The defendant's motion to preclude these statements is denied.
With regard to Sanchez, a different situation is presented. Although there is no evidence that law enforcement initiated the contact with Sanchez prior to receiving the letter of November 10, the additional correspondence from Sanchez postmarked November 22 and December 4 was sent after the meeting of November 17 with law enforcement. The CPL 710.30 notice incorporates the time period August — November 17, 2004. The notice does not include the letters postmarked November 22 and December 4 but the information in the body of the notice appears to incorporate the information provided by Sanchez in these two letters. Detective Cherico was unfamiliar with Sanchez's letter of November 22 to the District Attorney. In the December 4th Sanchez letter requests a response from law enforcement and yet there is no evidence of what, if any, response was provided. On this record, there is insufficient evidence for this court to find the People acted merely as a passive recipient of the information contained in the letters of November 22 and December 4 or that Sanchez acted as an agent in obtaining this information. The case is restored to the calendar on July 20, 2005 for a continuation of the hearing on this issue.
Franks Hearing
The search warrant for defendant's shoelaces was issued after defendant was indicted for the murder of Orlandito.
The affidavit in support of the warrant stated that "there appeared to be a visual match" of the rope found in defendant's home and around Orlandito's neck but did not state that a forensic analysis had concluded that the rope around Orlandito's neck was dissimilar in construction and composition to the rope submitted from defendant's apartment.
The challenged statement was unnecessary to establish probable cause for the issuance of the warrant because the gravaman of the warrant was the knot on defendant's shoelace, needed for comparison by the People's knot expert with the knot found around Orlandito's neck. Thus if the reference to the visual comparison is not considered, the warrant application contains sufficient information to justify the issuance of the warrant ( see, People v. Tambe, 71 NY2d 492).
Statements made to Ciruzzi on January 27, 1999
As stipulated by defendant, the statements made to Ciruzzi were not the product of custodial interrogation. The notice of this statement was timely filed on the second indictment which was consolidated with the first indictment. Since a suppression hearing was held, any contention regarding timeliness on the first indictment is irrelevant ( see, People v. Kirkland, 89 NY2d 903; People v. Sigue, 300 AD2d 414).
Statements made to Police Officer Ciruzzi in late February 1999 in the corridor of the Yonkers City Courthouse
It is undisputed that the indelible right to counsel had attached which could not be waived in the absence of counsel ( People v. Carmona, 82 NY2d 603). However, the People contend that defendant's statements to Ciruzzi were spontaneous.
"Admission of a truly spontaneous statement, blurted out by defendant without an `inducement, provocation, encouragement or acquiescence, (by the authorities) no matter how subtly employed' has been said to be proper, even if the statement was made in the absence of counsel (citations omitted). That a statement was volunteered or not made in direct response to questioning, however, does not render it spontaneous (citations omitted). Rather, it must satisfy the test for a blurted out admission, a statement which is in effect forced upon the officer (citation omitted)" ( People v. Grimaldi, 52 NY2d 611 at 617).
Defendant's statements were not blurted out or otherwise forced on Ciruzzi. Both men were having a casual conversation which may have been initiated by Ciruzzi and if not initiated by him was acquiesced in by him. Their conversation does not fall within the rubric of a spontaneous statement. Accordingly, defendant's motion to suppress these statements is granted.
The foregoing constitutes the decision of the Court.