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People v. Bell

Supreme Court of New York, First Department

August 1, 2017

The People of the State of New York, Respondent,
Allen Bell, Defendant-Appellant.

          Robert S. Dean, Center for Appellate Litigation, New York (Claudia Trupp of counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (T. Charles Won of counsel), for respondent.

          Friedman, J.P., Richter, Gische, Gesmer, JJ.

         Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered July 2, 2013, as amended July 19, 2013, convicting defendant, after a jury trial, of attempted murder in the second degree, and sentencing him to a term of 25 years, unanimously reversed, on the law, and the matter remitted for a new trial.

         Defendant Allen Bell was convicted of the attempted second-degree murder of Kevin Russo. Russo was shot once in the head, but survived his injuries with physical and psychological limitations. A disputed issue at trial was the extent he may have also suffered cognitive impairments, affecting the credibility of his testimony. Bell appeals from his conviction on the basis that the jury's verdict was against the weight of the evidence, and alternatively, that it was reversible error for the court to have admitted certain hearsay records in evidence without a proper foundation or limiting instruction. While we find that the verdict was not against the weight of the evidence, we reverse the conviction and remit for a new trial based upon the improper admission of hearsay evidence.

         At about midnight on October 25, 2007, police responded to a "shots fired" 911 call and discovered two bodies at the top floor of a five story walk-up building on the Grand Concourse in the Bronx. The two-bedroom apartment (Newton's apartment) was a "stash" house where drugs where stored and sold. One body was that of Daniel Newton, also known as "Danny, " "D" or "B-Block, " who was a large scale drug dealer. The other body was of Lumildy Rosado, Newton's girlfriend, known as "Mindy." Each victim sustained a single, close range gunshot to the head and each died immediately. A third victim, Russo, was also shot once in the forehead, but he survived. Russo remains paralyzed on one side and, at the time of trial, resided in a nursing home.

         Bell, who is also known as "Butter, " and his codefendant Raheim Bruno, were charged with murder in the first degree, two counts of murder in the second degree, attempted murder in the second degree, two counts of manslaughter in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree, in connection with Newton and Rosado's murders. They were also charged with the attempted second-degree murder of Russo. Bell and Bruno were jointly tried. Each defendant was acquitted of the murder charges regarding Newton and Rosado, but convicted of Russo's attempted murder. In November 2016, this Court reversed Bruno's conviction and dismissed the indictment against him on the basis that there was insufficient evidence adduced at trial that he shared Bell's intent to cause Russo's death (People v Bruno, 144 A.D.3d 413');">144 A.D.3d 413 [1st Dept 2016], lv denied 28 N.Y.3d 1182');">28 N.Y.3d 1182 [2017]).

         The evidence at trial was as follows:

         The police arrived at the apartment, finding two guns, approximately a kilogram of cocaine, marijuana, ecstasy pills, and approximately $5, 000 in cash. Newton's body, found in the living room located in the rear right side of the apartment, had a single bullet hole in the back of his head. The furniture was overturned. Rosado's nude body was found in Newton's bedroom, to the left and rear of the apartment. The door to Russo's bedroom, located near the front entrance of the apartment, to the right of its interior hallway, had been kicked down or knocked off its hinges. The door was smeared with blood.

         Officers were also dispatched to a nearby subway station at 171st Street and the Grand Concourse. Witnesses described seeing two men, one of them approximately six feet tall and light skinned black, possibly Hispanic. The officers also found an iced tea bottle in a nearby trash can and a white plastic bottle cap nearby. The bottle cap appeared to have blood on it. Both items were swabbed later and tested for DNA.

         A police team investigated the apartment, tested for latent prints and swabbed various items believed to have human blood on them. They also searched for weapons and ballistics. Altogether, 13 pieces of ballistics evidence were recovered, including: a discharged shell casing in the bedroom where the Rosado's body was found, a live cartridge in Russo's bedroom, another live cartridge in the apartment's interior hallway, and a third live cartridge in the living room, along with a discharged shell near Newton's body. Also recovered were two deformed bullets, two shell casings and a broken pistol handle, whose magazine contained three uncharged cartridges. The broken handle, from a 9 millimeter gun, was found near where Russo was shot. Another gun was found in a drawer in Newton's bedroom.

         Two neighbors testified at trial. One witness, D.L., was 12 years old when the shooting occurred in 2007. D.L. lived next door to Newton and knew the victims well. D.L. testified that around midnight of October 25th, she was awakened by yelling, screaming and "tussling" next door. She heard someone calling for "Danny" and testified it sounded like someone was trying to break into Newton's apartment. While placing a call to her mother, D.L. heard a gunshot, a short pause and then another gunshot. D.L. testified she then heard a voice, which she recognized as Russo's, urgently saying "Yo D, Yo D, get up, " a third gunshot and the sound of people running down the hallway stairs. She then heard someone repeatedly saying, "[C]ome on, come on... get the gun." D.L. also testified she heard someone say, "Gutta, get the gun." [1] According to D.L., Russo's urgent calling out to Newton came from somewhere near the front entrance to the apartment, where Russo's bedroom would have been. When police arrived and knocked on her door, D.L. did not answer, but remained silently inside. D.L.'s mother never took her to speak to the police and it was not until several years later, after running into Newton's sister in court, that D.L. came forward. T.J., who lived on the fourth floor, in the apartment below Newton's, also testified at trial. T.J. was familiar and friendly with the occupants of Newton's apartment. She testified that around midnight on October 25th, she heard loud noises, "tussling, " and then a gunshot from the apartment above. She heard Russo screaming, "D, D, " a second shot, then Russo screaming for somebody to call the police. T.J. called 911. She then heard a female screaming for help, more shots, more tussling and dogs barking, at which time T.J. placed a second 911 call. From the door's peephole, she had a direct view of the stairs leading down from the fifth floor. T.J. saw two men, one a light-skinned black or Hispanic male, running down the stairs holding something in his hand, resembling a stick or a two-by-four piece of wood. T.J. also got a glimpse of a second person, running down from the fourth floor towards the floor below. She identified the second person as a black male. At trial, T.J. identified Bell as the light-skinned man she saw facing her as he ran down the stairs from the fifth floor. T.J. also testified that she overheard the second man who was in front say to the man behind him, "Yo Butters, did you get that?" or "Son, did you get that?" On cross-examination, however, T.J. admitted that she was not sure about what was said "five years ago" and she might have first heard the nick name (Butter) from others who were talking about the shooting. T.J. did not provide a usable description of the light-skinned male when she was interviewed by the police in October 2007. The first time T.J. provided a description of Bell was in January 2013 when the police showed her a photo array containing Bell's photo.

         Lead detective Hennessey testified that his initial attempts to speak to Russo at the hospital after the shooting were unsuccessful, because Russo was unresponsive. By November 13th Russo was able to communicate by gestures, but still could not speak. Hennessey already had a tip, from an informant, that there was talk in the neighborhood that Bell and Bruno were involved in the shooting. Consequently on November 14th, Hennessey brought two photo arrays with him to the hospital. One array contained Bell's photo; the other contained Bruno's photo. Through a series of gestures, Russo was able to identify both Bell and Bruno in the photos and further convey that neither of them had a gun at the time of the shootings.

         On November 16th, Hennessey located Bruno, who was brought to the precinct for questioning. During an "interview" that lasted 17 hours, Bruno provided a written and videotaped statement. Bruno's written and recorded statements were introduced in evidence. Insofar as ...

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