APPEAL by the People, as limited by their brief, from so much of an order of the County Court (Rory J. Bellantoni, J.), entered September 18, 2008, in Westchester County, as, after a hearing, granted that branch of the defendant's motion which was pursuant to CPL 440.10 to vacate a judgment of the same court (Peter M. Leavitt, J.), rendered December 15, 1997, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
The opinion of the court was delivered by: Lott, J.
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.
JOSEPH COVELLO, J.P., FRED T. SANTUCCI, CHERYL E. CHAMBERS and PLUMMER E. LOTT, JJ.
In 1997, the defendant, off-duty New York City Police Officer Richard D. DiGuglielmo, was convicted of depraved indifference murder for fatally shooting Charles Campbell. At trial, the defendant had proffered a justification defense, contending that he shot Campbell as Campbell was about to strike the defendant's father, Richard B. DiGuglielmo (hereinafter DiGuglielmo Sr.), with a baseball bat. In an order entered September 18, 2008, the County Court, after a hearing, among other things, granted that branch of the defendant's motion which was to vacate his conviction on three grounds: (1) pursuant to CPL 440.10(1)(h), as unconstitutionally obtained with insufficient evidence of depraved indifference; (2) pursuant to CPL 440.10(1)(g) on the ground that there was newly discovered evidence which was of such character as to create a probability of a verdict more favorable to the defendant if it had been received at trial; and (3) pursuant to CPL 440.10(1)(f) and (1)(h) on the ground that the prosecution violated its duty to disclose exculpatory material consisting of the same newly discovered evidence (see People v DiGuglielmo, 21 Misc 3d 1103[A], 2008 NY Slip Op 51938[U]). We reverse the order insofar as appealed from by the People and reinstate the judgment of conviction. The Trial
The fatal shooting occurred on October 3, 1996, in the parking lot of the Venice Deli in Dobbs Ferry (hereinafter the Deli), a business owned by the defendant's parents. More than a dozen witnesses observed part or all of the events leading to the shooting. According to the trial testimony, Campbell became angered when DiGuglielmo Sr. applied a sticker to his Corvette, which Campbell had parked in a space reserved for Deli patrons, while he patronized a business across the street. A fight erupted, during which the defendant, DiGuglielmo Sr., and Robert Errico, the defendant's brother-in-law, beat Campbell to the ground, punching him repeatedly with fists and a cell phone before allowing him to get up. The defendant and Errico then headed back toward the Deli as Campbell walked to his Corvette; DiGuglielmo Sr. followed Campbell, apparently attempting to return Campbell's shirt, which had come off in the melee. Campbell then opened the hatch of the Corvette, pulled out a baseball bat, and suddenly swung it, striking DiGuglielmo Sr. in the knee. Just before the strike, two witnesses had the impression that Campbell was about to swing at the level of DiGuglielmo Sr.'s shoulder or head.
At that point, several witnesses observed Campbell backing up as DiGuglielmo Sr. and Errico pursued him, apparently trying to take the bat away, while the defendant ran into the Deli, where he retrieved a handgun. Campbell moved about 40 feet from the Corvette to the end of the parking lot, where witnesses Kevin O'Donnell and Michael Dillon were sitting inside a TCI Cable truck. As Campbell backed up, one witness observed him swing at DiGuglielmo Sr. and Errico "every time they got closer," and another heard Campbell screaming "no" and "get away from me." Several witnesses observed Campbell either holding the bat above his shoulder in a "batter's stance," making small circular motions like a baseball player ready to receive a pitch, or "threatening" DiGuglielmo Sr. with it. Three witnesses thought that Campbell looked "ready" to swing or strike. Campbell had just passed the front of the TCI truck when the defendant ran in front of the truck and, without warning, fired three times.
Estimates of the distance between Campbell and DiGuglielmo Sr. at the moment of the shooting varied greatly. Dillon and another witness placed them 51/2 feet apart, three witnesses gave estimates in the range of 12 to 14 feet, and O'Donnell estimated 30 to 40 feet. The defendant testified that he did not intend to kill Campbell, but only to stop him from hitting his father, who was three or four feet away. Afterwards, DiGuglielmo Sr. complained of injury to his right knee and right hand, but told a detective that Campbell had struck him only in the knee. Autopsy findings revealed that one of the three bullets entered the outside of Campbell's left forearm, exited the inside of that forearm, and entered his abdomen, consistent with Campbell standing in a right-handed batter's stance.
Both Dillon and O'Donnell testified at trial that Campbell was in a baseball player's stance, but not swinging the bat, when the defendant fired the gun. This testimony was consistent with the statements they had given to detectives of the Dobbs Ferry Police Department (hereinafter DFPD) on October 8, 1996, but inconsistent with statements they had made on the day of the shooting, October 3, 1996. A few hours after the shooting, Dillon had told a news reporter that Campbell had hit DiGuglielmo Sr. "in the legs and almost the head" and that, in his opinion, the shooting was "self-defense." Later that evening, Dillon had signed a typewritten statement at DFPD headquarters in which he claimed that Campbell "was still swinging the bat at [DiGuglielmo Sr.]" when the defendant ran up and shot him. At trial, on cross-examination, Dillon testified that the statements he had made on October 3rd were incorrect, attributing the inaccuracy to being tired at the time he made them.
Similarly, O'Donnell had given two statements to the DFPD on the evening of the shooting, stating in both that Campbell had raised the bat in a batter's stance and was about to strike when the defendant shot him. Like Dillon, O'Donnell testified at trial that the statements he gave on October 3rd were incorrect and attributed the inaccuracies to being nervous and a little shaken up so soon after the incident.
The trial court submitted to the jury two counts of murder in the second degree on alternate theories that the defendant acted intentionally or recklessly under circumstances evincing a depraved indifference to human life (Penal Law § 125.25, ). The jury rejected the justification defense and found the defendant guilty of depraved indifference murder, acquitting him of intentional murder. The Defendant's Motion Pursuant to CPL 440.10
On September 21, 2006, the defendant filed a motion to vacate the judgment of conviction pursuant to CPL 440.10(1)(h) on the ground that it was not supported by legally sufficient evidence of depraved indifference, in violation of his constitutional right to due process. On November 9, 2006, the defendant filed a supplemental motion pursuant to CPL 440.10(1)(f) and (1)(h) to vacate the conviction on the ground, inter alia, that the People had committed a Brady violation (see Brady v Maryland, 373 US 83) by failing to disclose tape recordings made by the DFPD of interviews with Michael Dillon and James White, an eyewitness who did not testify at trial. Appended to the motion were statements of Dillon and White taken by defense investigators in 2006, in which Dillon and White claimed to have been tape-recorded and subjected to repeated ...