Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered May 10, 2006, convicting defendant, after a jury trial, of criminal possession of a weapon in the third degree, and sentencing him to a term of 7 years, affirmed.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Tom, Catterson, Richter, Abdus-Salaam, JJ.
On June 3, 2004, in response to a 4:00 a.m. radio communication of "shots fired," police found Robinson "Tito" Lopez dead behind a building at 1952 Second Avenue. The medical examiner found that Lopez had died from multiple gunshot wounds that had perforated his vital organs.
Eyewitness testimony established that, immediately before the shooting, Lopez was involved in an argument with two women, his ex-girlfriend Loraine Ceballo and her friend Tamika Taylor. During the argument, Lopez made insulting remarks about Charles Gonzalez, Ceballo's current boyfriend. In response to a telephone call from Ceballo, Gonzales arrived on the scene about 10 minutes later accompanied by defendant. After the two men located Lopez in the parking lot in the back of the building, a confrontation erupted. Shortly thereafter, Lopez was shot and killed.
Investigation of the scene revealed one deformed bullet and nine.380 caliber shell casings. Ballistics testing established that, of the nine shell casings, six had been fired by one gun and the remaining three by another gun. All four recovered bullets -- the deformed bullet recovered at the scene and the three bullets recovered during the autopsy -- were found to have been fired by the same gun. However, officers were unable to link the bullets to the shell casings.
At trial, Ceballo testified that she followed Gonzalez and defendant to the back of the building. Although her view of Lopez was blocked, she watched Gonzalez and defendant approach Lopez's car. There, according to Ceballo, she saw both Gonzalez and defendant raise their hands "in a fist form," and saw that they were holding something in their hands. Although Ceballo said at trial that she could not identify the objects in the men's hands, she had told detectives who interviewed her that she saw them holding guns, and had testified similarly in her grand jury testimony.
Ceballo further testified that after she heard three gunshots, she immediately ran back towards the building, and that Gonzalez and defendant ran right past her, through the lobby. Notably, Ceballo testified that she did not see anything in either Gonzalez's or defendant's hands as they ran.
According to evidence read into the record by the People, during the trial, after Ceballo testified, she and Taylor were brought back to the prosecutor's office and reinterviewed. Taylor, who had not yet testified, denied being present during the shooting. However, after Ceballo left the room, Taylor admitted to the prosecutor that she had been present during the shooting. Taylor added that Gonzalez put a gun or guns in Ceballo's purse after the shooting.
After Ceballo returned to the room, Taylor confronted her about whether Gonzalez had put a gun in her purse. At that point, Ceballo acknowledged that Gonzalez had in fact placed a gun or guns in her purse. Ceballo went "back and forth" on whether she received one or two guns, and said that she did not know.
The next day, Taylor testified that, immediately after the shooting, Gonzalez and defendant ran to the back entrance of the building, and she and Ceballo ran into the building with the two men. According to Taylor, Gonzalez put at least one gun in Ceballo's purse. As Gonzalez and defendant fled through an exit door, Ceballo boarded the elevator with Taylor and asked, "What am I going to do with the guns?... I don't want this in my house."
Following Taylor's testimony, defense counsel asked to recall Ceballo but was told that she was no longer available because she had suffered a breakdown and had attempted suicide. Defendant moved for a mistrial or, alternatively, to strike Ceballo's testimony, on the grounds that he was denied his right to confront Ceballo regarding the gun or guns.
The trial court denied defendant's motion, finding that the issue of whether Ceballo was given one or more guns was a minor portion of her testimony. The next day, the court made the following record explaining its decision: "[T]wo days ago, the witness Loraine Ceballo was subjected to a consummately skillful and exhaustive cross examination. All encompassing, grueling, scathing, and repeatedly reduced her to tears and the breaking point. Add to this the palpable abject terror she communicated, the lethal factions this most reluctant, this fine young woman finds her in the middle of. The culmination? Loraine Ceballo had a psychotic breakdown that night, attempting suicide twice. Through nobody's fault, she is unavailable for further examination by either side. The end result is that Tamika Taylor's testimony will remain uncontroverted, and this, it ...