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April 20, 2001


The opinion of the court was delivered by: Korman, C.J.,


August Kennaugh seeks habeas corpus relief from his conviction for one count of second degree murder and two counts of first-degree robbery. After a jury trial, petitioner was sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder conviction, and eight and one-third to twenty-five years on each of the robbery convictions. The Appellate Division affirmed the conviction, People v. Kennaugh, 92 A.D.2d 1090 (2d Dep't 1983), and petitioner's application for leave to appeal to the New York Court of Appeals was denied. 59 N.Y.2d 677(1983).

The underlying crimes were committed in the early morning of October 5, 1979, when petitioner and two other men forced themselves into a restaurant in order to commit a robbery. During the robbery, the owner of the restaurant was stabbed to death. Petitioner was arrested four months later. Petitioner seeks relief on two grounds. In his original petition, he claimed that the District Attorney failed to disclose that two witnesses had observed the perpetrators just prior to the crime and were unable to identify petitioner at a lineup. Petitioner later amended the petition to include the claim that an eyewitness, who failed to identify him at a lineup held seven months before trial, was permitted to do so in a suggestive in-court setting.


In the early morning of October 5, 1979, Guelfo Nello Terzi, the owner of Caesar's Restaurant ("Caesar's"), Gemma Terzi, his wife, and Elio Rusnjak, the bartender, were closing the restaurant for the night. As Rusnjak opened the door to leave, three young men (one allegedly being petitioner), two of whom were carrying guns, forced their way into the restaurant. Tr. 41-42; 108-09. Mrs. Terzi and Rusnjak were thrown on the floor, and two of the men watched and guarded them. Tr. 56; 109. Mrs. Terzi's pocketbook, jewelry, and gold, among other items, were taken from her. Tr. 56-58. The third man took Mr. Terzi to the cash register at the bar and then to the kitchen where approximately $500 was kept to start the next day. Tr. 58, 65; 109.

Mrs. Terzi and Rusnjak were also taken to the kitchen. Tr. 59; 111. Both of them were thrown to the floor and Mrs. Terzi was tied up with a napkin. Tr. 59-60, 64; 111. Two of the men went with Mr. Terzi to the other side of the kitchen, where the refrigerator containing a box with money was located. Tr. 111. One of them forced Rusnjak to get up, told him not to remember anything when the police came, and made him take off his belt and pants. Tr. 112. Rusnjak was then forced to lay down again, hit twice with a gun, and tied up with his belt. Tr. 61; 112. One of the perpetrators suggested raping Mrs. Terzi, but she was not in fact raped. Tr. 60-61; 113. Mrs. Terzi recalled that one of the perpetrators said to her husband, "If you don't give us the money, we will kill you," and Mr. Terzi responded, "Then kill me." Tr. 62. Mr. Terzi was then stabbed and killed, and another of the perpetrators screamed, "Why you do that, Why you do that." Tr. 63. As the men ran out, one of them, identified as petitioner, pointed a gun at Mrs. Terzi and told her that she should not remember his face or tell the police she has seen anything. Tr. 63. After the perpetrators left the restaurant, Mrs. Terzi untied herself and Rusnjak. The two of them discovered that Mr. Terzi had been stabbed with a kitchen knife. Tr. 64; 113-14. Rusnjak then called the police. Tr.64; 114.

Petitioner was arrested on February 3, 1980, and he was tried in New York State Supreme Court, Queens County, in early 1981. The case against him consisted primarily of petitioner's fingerprint on the cash register at the scene of the crime and of eyewitness identifications.

1. Fingerprint Evidence

Detective Gerald Donohue testified for the prosecution that on the night of the incident, he lifted a fingerprint that was located on the bottom of the drawer of the cash register. Tr. 144-49. He opined that, because of the area in which the drawer was located and the amount of times a cash register is used, the print could have been on the register for at most two days. Tr. 152-53. At this point in the trial, Rusnjak had testified that the cash register remained open at night after it was emptied. Tr. 107. He did not testify as to the number of times the cash register was used when the restaurant was open. Nevertheless, the former owner of Caesar's, Wilfredo Betancourt, later testified that large bills and checks were kept underneath the cash register tray. Tr. 282-84. After Betancourt testified, the prosecution moved to recall its fingerprint experts, to specifically address the significance of this use of the cash register tray. Tr. 289, but the trial judge denied the motion, believing that the evidence would be cumulative. Tr. 293. Indeed, while Detective Donohue conceded in his testimony that the drawer was not subject to air when the register is closed, he noted that the drawer was subject to friction caused by placing large bills under the drawer. Tr. 155-56. Donohue also stated that, "[i]f the drawer wasn't used [a fingerprint] could last an indefinite period of time as long as it wasn't disturbed." Tr. 158.

Officer John Dee testified as an expert in latent fingerprints that the fingerprint found on the cash tray belonged to petitioner. Dee testified that he compared a fingerprint taken of petitioner when he was arrested with a partial latent fingerprint found on the cash register in the restaurant. Tr. 178-79. He concluded that the left thumb was a match, Tr. 186, and that "[i]t's impossible for that latent print to be any other print than that print there of [the left thumb] finger." Tr. 189. In response to a question from defense counsel concerning how long a print could remain on a cash register that is primarily closed, Dee stated that it would depend on atmospheric conditions, use of the equipment, and various other factors, and that it could be any length of time. Tr. 195-96.

Petitioner did not dispute that his fingerprint was on the cash register. Instead, he attempted to explain the presence of his fingerprint by showing that he had touched the cash register at a time other than during the robbery. John Harms, an electrician who knew petitioner's parents and frequented Caesar's, and Thomas McManus, the owner of a bar frequented by petitioner's father, testified that they had seen petitioner and his father in Caesar's on numerous occasions. Tr. 258-59; 264-66. Both witnesses admitted on cross-examination that they had never seen petitioner touch the cash register. Tr. 261; 267. This missing piece was filled by the testimony of Mr. Betancourt, the former owner of Caesar's, who had sold the restaurant and moved to Florida about a year and one-half before the trial. Tr. 269-70. Betancourt identified petitioner as having been in the restaurant with his father many times. Tr. 270. Some three months before the robbery, when closing the restaurant, Mr. Betancourt removed the cash tray from the register in order to count the money and the tray fell on the floor. Petitioner, who was in the restaurant, picked up the tray and gave it to Betancourt. Tr. 271. Mrs. Terzi had testified that she and her husband had not replaced any of the equipment in the restaurant. Tr. 77.

Mr. Betancourt, however, was unable to remember several details on cross-examination: the month during which he had moved to Florida, Tr. 274, the specific date or week in July when the tray fell, Tr. 284, the one time, other than the night the tray fell, when petitioner and his father stayed until the restaurant closed, Tr. 275-76, or the identities of the other people in the restaurant when the tray fell. Tr. 280. Betancourt stated that the night in July 1979 was the only time he could remember the tray falling, Tr. 276, 286, and that it was one of the rare nights that the bartender, Rusnjak, left before the restaurant had closed. Tr. 279-80.

2. Identification Testimony

The prosecution introduced two pieces of identification evidence. First, Irving Silver, a resident of Queens, testified that he was in the restaurant the night of the robbery at about 10:00 or 10:30, that he left at about 12:30, and that he saw petitioner on the street near a pizza store, four stores away from the restaurant. Tr. 129-31. Silver could not remember whether petitioner was with anyone else. Tr. 131. Silver testified that in July 1980, he observed a lineup and identified petitioner as the person he had seen outside the pizza store. Tr. 131-33. Silver also identified petitioner at the trial. Tr. 130. This testimony placed petitioner in the neighborhood a little over an hour before the robbery was committed. Silver acknowledged on cross-examination that the pizza store was a place where young people congregated, Tr. 135, and stated that he did not recognize petitioner's counsel as one of the persons present at the July 1980 lineup. Tr. 133-34. Second, Mrs. Terzi identified petitioner as one of the perpetrators of the crime. Tr. 62-63. The circumstances of her identification are discussed more fully in the portion of this memorandum that addresses petitioner's challenge to the admissibility of her identification. Suffice it to say here that Mrs. Terzi's identification was of minimal probative value.

Petitioner was convicted of one count of second-degree murder and two counts of first degree robbery, and sentenced to concurrent indeterminate terms of imprisonment of twenty-five years to life for the murder conviction, and eight and one-third to twenty-five years on each of the robbery convictions.


On May 2, 1996, petitioner filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, on the ground that the prosecution had willfully concealed exculpatory evidence when it failed to disclose evidence relating to Basilico and Bovino, in violation of Brady and Rosario. Amend. Pet., ¶ 17. After an evidentiary hearing, the motion to vacate the judgment was denied. § 440.10 Decision, at 1. The judge presiding at the § 440.10 hearing found that "the prosecution failed to deliver the two DD-5's at issue to the defense and did not inform them of Basilico and Bovino's inability to identify [petitioner] in the lineup." Id. at 5 (footnotes omitted). Nevertheless, the judge also found that defense counsel knew that a second lineup had been conducted and had a duty to inquire into the results of that lineup. Id. at 5 n. 2. More significantly, the police reports were not material evidence because a reasonable probability did not exist that the disclosure of the reports would have altered the outcome of the trial. Specifically, the judge concluded that "any assistance Basilico and Bovino would have provided if called as defense witnesses is highly speculative. They were not eyewitnesses to the crime. Furthermore, there is nothing which links the perpetrators of the crimes to the young men who earlier had purchased cigarettes from the victim." Id. at 6. Under these circumstances, if called at the trial, they would have testified only that, a year after the event, they could not identify petitioner as one of the three men who they had seen in the vicinity of the restaurant shortly before the robbery.

Some time after the denial of the § 440.10 motion, petitioner's mother found buried in her closet two DD-5s that involved interviews with Mrs. Terzi and Rusnjak, the bartender. Affirmation, in support of Motion to Reargue, Anthony v. Lombardino, ¶ 7. In the respective DD-5s, both Mrs. Terzi and Rusujak stated that the men who had purchased cigarettes were the same men that later forced themselves into Caesar's and perpetrated the crimes. Id., ¶ 8; Ex. B. The significance of the DD-5s is that they place in a somewhat more helpful light to petitioner the failure of Basilico and Bovino to identify him as one of the persons they saw purchasing cigarettes from the victim earlier in the evening before the robbery. If, as the latest DD-5s indicate, the persons who purchased the cigarettes were the same persons who later returned to the restaurant to commit the robbery and murder, their inability to pick petitioner out of the lineup was more significant than the bare fact that they could not identify petitioner as one of the men who they had seen in the vicinity of the restaurant.

On the basis of the two additional DD-5s, petitioner moved on March 3, 1999 to reargue his § 440.10 motion. The motion was denied for two reasons. The court concluded that the results of the trial would not likely have been different had the DD-5 reports been turned over to the defense. Order, Motion to Reargue, April 7, 1999, at 2 ("Order, Motion to Rearg."). The court also found that petitioner had failed to make any showing as to why the additional police reports could not have been submitted with the initial § 440.10 motion when they had been in his mother's possession. Id. at 1-2. The judge cited to three cases denying motions for renewal and/or reargument that had been supported with additional facts because of the failure to offer valid excuses for not having included the evidence in the original motions. See People v. Chetrick, 255 A.D.2d 392 (2d Dep't 1998); Misek-Falkoff v. Village of Pleasantville, 207 A.D.2d 332 (2d Dep't 1994); Caffee v. Arnold, 104 A.D.2d 352 (2d Dep't 1984). All three ofthese cases cite to Foley v. Roche, 68 A.D.2d 558 (1st Dep't 1979), in which the Appellate Division discussed the difference between motions for reargument and renewal. A motion for reargument is "designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law." Id. at 567. A motion for renewal, which is at issue here despite petitioner's characterization of his motion as one for reargument, "must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court." Id. at 568. A motion for renewal should be denied "where the party fails to offer a valid excuse for not submitting the additional facts upon the original application." Id. (citations omitted). In this case, the judge found that petitioner had not offered a valid excuse for failing to submit the police reports with the original motion.

The judge did not rely on Section 440.10(3)(c) of New York's Criminal Procedure Law, which would seem to have been the relevant statutory provision if petitioner had filed a second 440.10 motion to vacate his judgment of conviction. Section 440.10(3)(c) provides that a motion to vacate a judgment may be denied when, "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." § 440.10(3)(c). This provision, however, provides that, "in the interest of justice and for good cause shown," the second successive motion may be granted "if it is otherwise meritorious." § 440.10(3). The Practice Commentaries explain that "the test as to whether the court will exercise discretion to relieve the defendant from forfeiture will be whether the defendant can demonstrate good cause for failure to raise the ground on a prior motion." Peter Preiser, Practice Commentaries, McKinney's Consol. Laws of N.Y., Book 11A, Crim. Proc. L. § 440.10, at 427. In this case, though the judge did not refer to § 440.10(3)(c) in denying the motion for reargument, the result would not have been any different if he had treated the motion for reargument as a second motion to vacate the conviction.

On September 22, 1998, the Appellate Division denied petitioner's application for leave to appeal from the denial of the motion to reargue. Amend. Pet., ¶ 19. Petitioner filed his original petition for a writ of habeas corpus on August 13, 1999, and an amended petition on March 1, 2000.


I. Brady Violation Claim

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