| People v Colletti |
| 2010 NY Slip Op 04610 [73 AD3d 1203] |
| May 25, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Victor Colletti, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and LindaCantoni of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Cooperman, J.), rendered October 15, 2008, convicting him of enterprise corruption, promotinggambling in the first degree (eight counts), and conspiracy in the fifth degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant's contention that the evidence was legally insufficient to support hisconviction of enterprise corruption is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Gray, 86 NY2d10, 19 [1995]; People v Muriel-Herrera, 68 AD3d 1135, 1136 [2009]; People vSampson, 67 AD3d 1031 [2009]). In any event, the contention is without merit. Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d620 [1983]), we find that it was legally sufficient to establish the statutory elements of enterprisecorruption, as charged by the Supreme Court, beyond a reasonable doubt (see Penal Law§ 460.20).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), wenevertheless accord great deference to the jury's opportunity to view the witnesses, hear thetestimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004], certdenied 542 US 946 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against the weight ofthe evidence (see People v Romero, 7 NY3d 633 [2006]).
Nevertheless, we agree with the defendant that reversal is warranted because the SupremeCourt's jury instructions constructively amended the indictment to permit the defendant'sconviction for participation in a criminal enterprise other than the enterprise identified andalleged by the grand jury in the indictment. The indictment specifically alleged, inter alia, thatthe defendant oversaw an ongoing illegal gambling operation, "to wit, the Genovese-BonannoGambling Organization." The lengthy indictment also contained numerous references to "theGenovese-Bonanno Gambling Organization" and detailed the alleged involvement of thedefendant and his codefendants in the Genovese and Bonanno organized crime [*2]families and their roles in this particular gambling operation.Consistent with the indictment, the prosecutor focused on the task of tying the defendant to "theGenovese-Bonnano Gambling Organization," and his opening statement and summation werereplete with organized crime references. Significantly, none of the fact witnesses or wiretapevidence, which clearly demonstrated the defendant's involvement in illegal gambling,mentioned "the Genovese-Bonanno Gambling Operation" or organized crime in general. Indeed,during his questioning of one witness, the prosecutor even referred to "Victor Colletti's gamblingorganization," "Mr. Colletti's gambling business," and "Victor Colletti's gambling enterprise."The prosecution also produced a police investigator who testified as an expert witness regardingthe structure, heirarchy, and activities of the "Cosa Nostra" and its constituent organized crimefamilies, and who stated, inter alia, that the defendant was a "soldier" in the Genovese crimefamily. The expert's testimony was the only evidence presented by the prosecution to establish arelationship between the defendant and organized crime.
At the close of evidence, the defendant's counsel requested that the trial court instruct thejury that the defendant could not be convicted of enterprise corruption unless it found that thedefendant carried on his criminal activities for "the Genovese-Bonanno Gambling Organization"as the enterprise identified in the indictment and repeatedly referenced by the prosecutor and theexpert witness. Counsel maintained that in the absence of such an instruction, the pervasivereferences to organized crime throughout the trial were improper. The Supreme Court denied therequest. After reading to the jury the entire indictment, replete with organized crime references,the Supreme Court charged the statutory definition of "criminal enterprise" (see PenalLaw § 460.10 [3]), advising the jury that it could convict the defendant merely if it found,inter alia, that he was associated with and participated in the affairs of "a criminal enterprise."The defendant contends that by instructing the jury that it only needed to find the existence of ageneric criminal enterprise, the Supreme Court impermissibly broadened the basis for aconviction beyond that specifically alleged in the indictment. We agree.
Like the federal constitution, the language of our state constitution provides that no personshall be held to answer for a capital or otherwise infamous crime unless upon indictment of agrand jury (see US Const Amend V; NY Const, art I, § 6). "The right to have thegrand jury make the charge on its own judgment is a substantial right which cannot be takenaway" (Stirone v United States, 361 US 212, 218-219 [1960]), and "after an indictmenthas been returned its charges may not be broadened through amendment except by the grand juryitself" (id. at 215-216). The decision in United States v Weissman (899 F2d 1111[1990]) constitutes persuasive authority for reversal herein. In Weissman, the defendantswere charged in the indictment with conspiracy offenses under the Racketeer Influenced andCorrupt Organizations Act (see 18 USC 1962; hereinafter RICO) based on allegations, inter alia,that they conspired to commit criminal acts "while employed by or associated with an enterprise,to wit, a group of individuals associated in fact known as the DeCavalcante Family of La CosaNostra" (899 F2d at 1112). Similar to the instant case, the indictment contained extensivereferences to organized crime, as did the prosecution's evidence and the government's openingand closing statements. However, in response to an inquiry from the jury, the trial court gave asupplemental charge which instructed the jurors that they did not have to find that the enterprisein that case was the DeCavalcante crime family, but that they could convict upon finding thedefendants' requisite involvement in any enterprise that fit the general statutory definition. TheEleventh Circuit Court of Appeals determined that in giving this instruction, the trial court"constructively amended the indictment and committed reversible error" (id. at 1115)because the charge allowed the jury "to convict [the defendants] of a RICO conspiracy other thanthe one detailed by the grand jury in the indictment" (id. at 1114). The decision furthernoted that the government could have avoided the problem by employing the general language inthe statute to refer to the enterprise in the indictment, but that once it chose to specify theenterprise as the DeCavalcante crime family, and to present evidence and arguments to thateffect at trial, the trial court was bound to charge that the jury was required to find the sameenterprise identified by the grand jury in order to convict. Specifically, the court inWeissman observed in relevant part as follows: "The government in styling theindictment could have used the general language of the statute to refer to the enterprise in whichappellants allegedly were involved. Indeed, following this opinion, the government [*3]may well summon another grand jury and reindict appellants forconspiring to violate RICO in collusion with a more generally described enterprise. In the casebefore us, however, the government chose to specify that appellants were 'associated with anenterprise, to wit, a group of individuals associated in fact known as the DeCavalcante Family ofLa Cosa Nostra.' [Accordingly,] [t]he trial court, upon receiving the jury's inquiry, should haveinformed the jury that the enterprise in this case, in conformity with charges brought in thisindictment, was synonymous with the DeCavalcante family" (id. at 1115).
Since the circumstances in the case before us are strikingly similar to those inWeissman, we conclude that reversal herein is similarly appropriate (see also UnitedStates v Narog, 372 F3d 1243 [2004] [where indictment charged that the defendantspossessed and distributed material with the knowledge that it would be used "to manufacture acontrolled substance, that is, methamphetamine" (id. at 1246), the court could notconstructively amend the indictment by instructing that the evidence need only prove knowledgeof use of the material to manufacture "some controlled substance" (id. at 1247), since theinstruction "constructively broadened the possible bases for the conviction" (id. at1248)]; United States v Leichtnam, 948 F2d 370, 375 [1991] [where indictment chargedfirearms offense based on possession of a specific type of rifle, and the jury was made aware thatother guns were found at the defendant's premises, the court could not merely instruct the jurythat a conviction could be based on possession of "a firearm"]; Howard v Dagget, 526F2d 1388 [1975] [where indictment charged the defendant with inducing two named women toengage in prostitution, and information regarding additional women came to light at trial, courtcould not simply instruct jury as to general statutory elements of offense without specifying thetwo women identified in the indictment]; People v Grega, 72 NY2d 489, 498 [1988]["the People are not required to specify in a burglary indictment what crime defendant intendedto commit but, if it is specified, they must prove that crime, not a different one"]).
The People attempt to distinguish the foregoing decisions by arguing that in the instant case,there was no indication that any criminal enterprise other than "the Genovese-BonannoGambling Organization" existed and, therefore, there was no possibility that the jury could havebased its conviction of the defendant upon such an alternate enterprise (see generally Peoplev Grega, 72 NY2d 489 [1988]). However, assuming that such an alternate basis forconviction must have been affirmatively presented in the case (but see United States v Narog,372 F3d at 1249; United States v Weissman, 899 F2d 1111 [1990]), we disagreewith the People's contention given the repeated references to "Victor Colletti's gamblingenterprise" during the direct examination of a prosecution witness. Likewise, we findunpersuasive the People's argument that the lengthy and detailed references in the indictment to"the Genovese-Bonanno Gambling Organization" constituted mere "surplusage" similar to thebrief descriptive language discussed in United States v Rosenthal (9 F3d 1016, 1020[1993]).
Moreover, since the various offenses of which the defendant was convicted are factuallyintertwined with each other, and the references to organized crime and to the activities of variouscrime families pervade the record, reversal and a new trial as to all of the counts is appropriate.
Although the defendant's current challenge to the propriety of the police expert's testimonyhas not been preserved for appellate review (see CPL 470.05 [2]), we take thisopportunity to note that, upon retrial, any expert testimony regarding the commission of specificcrimes or the defendant's involvement in organized crime must comport with the principles setforth in Crawford v Washington (541 US 36 [2004]) and its progeny (see e.g. UnitedStates v Mejia, 545 F3d 179 [2008]; People v Goldstein, 6 NY3d 119 [2005],cert denied 547 US 1159 [2006]). Moreover, to the extent that our decision in Peoplev Barone (221 AD2d 553 [1995]) may be interpreted as being inconsistent withCrawford v Washington (541 US 36 [2004]), it should no longer be followed. Prudenti,P.J., Mastro, Florio and Austin, JJ., concur.