Opinion
March 2, 1990
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof stating that the terms of imprisonment imposed on the conviction of murder in the second degree (counts three and four) must be served consecutively to the sentences imposed under counts one and two, and substituting therefor a provision stating that those terms of imprisonment shall run concurrently with each other; as so modified, the judgment is affirmed.
According to the evidence adduced at the trial, on March 24, 1984, the defendant, who was "in charge" of "the Corporation", a Cuban gambling enterprise which operated over 500 numbers parlors throughout New York City, hired William Diaz, his faithful soldier, to burn down a competitor's numbers spot located at 291 Evergreen Avenue in Brooklyn for $2,000. The defendant had visited 291 Evergreen Avenue, which was two blocks away from one of the Corporation's numbers parlors, on two occasions earlier in the year and told an employee, Anthony Cerone, that the operation would have to be closed. On March 24, 1984, when the defendant returned to 291 Evergreen Avenue on the third occasion with Diaz, and found it still operating, he directed Diaz to commit arson at that location. The following day, Diaz and Calvin Coleman, who was jointly indicted with the defendant and separately tried, went to 291 Evergreen Avenue. While Diaz waited outside, Coleman entered the premises with a bucket of gasoline, threw the gasoline against a wall, and ignited it with a match. Soon after, the building was engulfed in flames. Two men, Jose Luis Castro and Carlos Rivera, were unable to escape from the burning building, and both died.
The nefarious operations of the Corporation had been the subject of scrutiny by law enforcement officials for some time. In the course of the investigation, Diaz, as well as Danny Net, whose participation Diaz had enlisted in an attempt to burn down a competitor's numbers spot elsewhere in Brooklyn at the defendant's request, became Government informants. Ultimately, the defendant was arrested for his role in the Evergreen Avenue fire.
At the trial, Diaz described the elaborate hierarchal structure of the Corporation, as well as its extensive operations. He explained that, in furtherance of its goal of operating numbers parlors unimpeded by competition, the Corporation had a policy prohibiting rivals from maintaining parlors within a two-block radius of its own parlors. In this connection, Diaz was permitted to testify, pursuant to a pretrial ruling, as to completed and anticipated torchings and demolition jobs ordered by the defendant of competitors' numbers spots operating in violation of its two-block rule. Also admitted at trial were tape recordings of various conversations between and among the defendant and his accomplices, which included references to uncharged crimes.
The defendant claims that he was deprived of a fair trial by the court's ruling permitting the prosecution to adduce evidence of uncharged crimes in order to establish the crimes of which he was convicted. We disagree. It is settled that evidence of uncharged crimes is not admissible as part of the People's direct case if its sole purpose is to show that the accused was predisposed to commit the crimes charged (People v Santarelli, 49 N.Y.2d 241, 247). Such evidence will, however, be admissible "if it helps to establish some element of the crime under consideration" or if it falls within a recognized exception to the rule (People v Alvino, 71 N.Y.2d 233, 241). In this case, such evidence was admissible to establish "a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others" (People v Molineux, 168 N.Y. 264, 293). Specifically, the Corporation and one of its prime players, the defendant, were committed to the successful operation of the gambling enterprise, which entailed the elimination of nearby competition, and Diaz's testimony and references on tape-recorded conversations to the various other fires and demolition jobs were relevant to demonstrate that the Evergreen Avenue fire was part of this plan and was executed pursuant to the defendant's instructions (see, People v Hodge, 141 A.D.2d 843).
People v Grutz ( 212 N.Y. 72), on which the defendant relies for his claim that the common scheme or plan exception was improperly invoked at bar, is inapposite. Unlike in People v Grutz (supra) where the evidence was not properly admitted because it was not apparent that there existed a single, preconceived plan encompassing both the charged and uncharged crimes, the uncharged crimes in this case were contemplated within the Corporation's grand scheme of operating a gambling enterprise without nearby competition by eradicating all competitive enterprises violative of its two-block rule. Moreover, the charged and uncharged crimes were characterized by a relationship of place and circumstances found lacking in People v Grutz (supra), which would tend to prove the defendant's participation in the Evergreen Avenue fire. Thus, People v Grutz (supra) is distinguishable, since it may be said in this case that "the collateral acts are sufficiently connected with the act in issue such that each forms a part of a common plan on the part of the actor to achieve some ultimate result" (Matter of Brandon, 55 N.Y.2d 206, 212; emphasis added).
The evidence of uncharged crimes was also competent to establish that Diaz and the defendant were acting in concert, a claim challenged by the defense, which maintained that Diaz committed the Evergreen Avenue arson on his own initiative, independent of the defendant. Where the complicity of a defendant in the crime charged is at issue, evidence of the defendant's complicity in other crimes has been held admissible so long as the same other individual is involved in the uncharged crimes and they are similar to the crime charged (see, People v Jackson, 39 N.Y.2d 64, 68; People v Parsons, 150 A.D.2d 614; People v Wang, 140 A.D.2d 567, 570). The People were properly permitted to rebut the defense claim with evidence of other instances in which Diaz agreed to torch or destroy numbers parlors upon the defendant's request, since such evidence rendered it more probable that the Evergreen Avenue fire was a crime in which the defendant and Diaz had acted in concert.
This evidence was also admissible to establish "a motive common to all of the crimes sought to be proved" (People v Molineux, 168 N.Y. 264, 297, supra). The defendant's perpetration of the other crimes, the motive for which was the elimination of nearby competition, rendered it more likely that the defendant was actuated by that motive in the Evergreen Avenue fire as well.
Similarly, the tape-recorded conversations of the defendant's accomplices, which included references to uncharged crimes, were properly admitted under the exception to the hearsay rule as statements of coconspirators made in the course of and in furtherance of the conspiracy to operate a gambling enterprise unimpeded by competition (see, People v Salko, 47 N.Y.2d 230; People v Hodge, 141 A.D.2d 843, 845-846, supra).
While the evidence of uncharged crimes admitted at trial was extensive, we conclude that the trial court properly exercised its discretion in balancing the probative value and the need for the evidence, which was "material and necessary to the People's case" (People v Hodge, 141 A.D.2d 843, 845, supra), against the potential for prejudice (see, People v Alvino, 71 N.Y.2d 233, 242, supra; People v Ventimiglia, 52 N.Y.2d 350, 360; People v Allweiss, 48 N.Y.2d 40, 48-49; People v Hodge, 141 A.D.2d 843, 845, supra).
Finally, as the People concede, the court erred in imposing consecutive terms of imprisonment for counts of murder in the second degree of which the defendant was convicted. Since the deaths of the two victims resulted from the defendant's single act of arson, any terms of imprisonment imposed must run concurrently (see, Penal Law § 70.25; People v Coleman, 153 A.D.2d 756).
We have considered the defendant's remaining contentions and find them to be without merit. Mollen, P.J., Brown, Eiber and Rosenblatt, JJ., concur.