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PEOPLE STATE NEW YORK v. PETER LEONARD (12/16/85)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 1985.NY.53211 <http://www.versuslaw.com>; 497 N.Y.S.2d 28; 113 A.D.2d 258 December 16, 1985 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.PETER LEONARD, APPELLANT Appeal from a judgment of the Westchester County Court (Theodore Dachenhausen, Jr., J.), rendered September 28, 1978, upon a verdict convicting defendant of murder (24 counts), arson in the second degree, burglary in the second degree and petit larceny (two counts). Stephen J. Pittari for appellant. Carl A. Vergari, District Attorney (Gerald D. Reilly and Anthony J. Servino of counsel), for respondent. Weinstein, J. Eiber, J., concurs with Weinstein, J.; Lazer, J. P., and Thompson, J., concur in the result only. Author: Weinstein


Appeal from a judgment of the Westchester County Court (Theodore Dachenhausen, Jr., J.), rendered September 28, 1978, upon a verdict convicting defendant of murder (24 counts), arson in the second degree, burglary in the second degree and petit larceny (two counts).

Weinstein, J. Eiber, J., concurs with Weinstein, J.; Lazer, J. P., and Thompson, J., concur in the result only.

Author: Weinstein

 OPINION OF THE COURT

We conclude, reluctantly, that a reversal of the judgment of conviction is warranted in this case on constraint of People v Bartolomeo (53 N.Y.2d 225) and People v Rogers (48 N.Y.2d 167). While we regard defendant's other contentions as devoid of merit and would otherwise vote to affirm, we are nevertheless constrained by precedent to reach this unpalatable result.

The appeal involves a tragic fire at Gulliver's discotheque in Port Chester on June 29 and 30, 1974, which claimed the lives of 24 individuals. On that same night, there had been an attempted burglary of a nearby Homelite store (see, People v Leonard, 59 A.D.2d 1). On the night of the fire, defendant was observed running from the Homelite building, which was located approximately 100 feet away from Gulliver's, into an adjoining bowling alley. He was thereafter called in for questioning by the Connecticut State Police.*fn* After signing a statement admitting that he had broken a window and glass door to the Homelite store, defendant agreed to take a polygraph test. The test was scheduled for July 11, 1974, at 9:00 a.m. and arrangements for defendant's transportation to the State Police barracks in Bethany, Connecticut, were made.

En route to take the polygraph test on the morning of July 11, 1974, defendant informed Sergeant Ambrose of the Greenwich Police Department that he was represented by counsel with respect to a pending larceny charge for which he had been recently arrested involving the theft of copper downspouts from two buildings. Additionally, defendant informed the officer that his local attorney, Lawrence Kristoph, had advised him not to take the polygraph test. Notwithstanding his attorney's advice to the contrary, defendant stated that he still wanted to take the test in order to clear up the matter.

At approximately 11:00 a.m., defendant requested that his interview with the police be terminated on the ground that he was ill and not up to proceeding with the polygraph test. Defendant was immediately disconnected from the polygraph machine and was informed that he was free to leave the State Police laboratory. In the course of the car trip back home, defendant informed the police that he had lied. He was thereupon interrupted by Detective Lovallo of the Port Chester police and advised of his rights. Defendant nevertheless stated ...


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