| People v Nisthalal |
| 2011 NY Slip Op 06356 [87 AD3d 702] |
| August 23, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Vishnudatt Nisthalal, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and UshirPandit of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.),rendered May 22, 2008, convicting him of murder in the second degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and thematter is remitted to the Supreme Court, Queens County, for the purpose of entering an order inits discretion pursuant to CPL 160.50.
The defendant and codefendant Rasheen Sweeney were convicted, after a joint jury trial, ofmurder in the second degree in connection with the shooting death of victim Yamile Puentesduring the early morning hours of January 18, 1993, in the vicinity of the intersection of 37thRoad and 77th Street in Jackson Heights, Queens. Upon the exercise of our factual review power(see CPL 470.15), we agree with the defendant that his conviction was against the weightof the evidence.
In conducting our weight-of-the-evidence analysis, we must first determine, based upon thecredible evidence, whether a different result would have been unreasonable and, if it would nothave been, then we must " 'weigh the relative probative force of conflicting testimony and therelative strength of conflicting inferences that may be drawn from the testimony' " (People vBleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller,291 NY 55, 62 [1943]). Applying this standard of review to the proof adduced at the defendant'strial, we determine, in the first instance, that an acquittal on the sole charge of murder in thesecond degree that was submitted to the jury would not have been unreasonable based upon theevidence presented and, moreover, that the jury failed to accord the evidence the weight it shouldhave been accorded (see People vRomero, 7 NY3d 633 [2006]). Indeed, the testimony of the various prosecutionwitnesses was so fraught with inconsistencies and contradictions that it failed to provide acredible foundation for the defendant's conviction.
The theory of the prosecution's case was that the defendant, the proprietor of an after-hourssocial club on Roosevelt Avenue near 76th Street in Jackson Heights, ordered the murder of[*2]the victim, a club patron, by directing two bouncers employedat the club, the codefendant Sweeney and one "Mohammad," to kill him. The bouncers thenallegedly escorted the victim out the rear door of the club at gunpoint, walked him a block or twoaway and, after a noisy scuffle in which the victim pleaded for forgiveness, executed him whenMohammad fired a single bullet into his head, while Sweeney stood a short distance away andacted as a lookout. However, the accounts of these alleged events provided by the prosecution'switnesses were so contradictory as to be unworthy of belief.
For example, a bartender and a disc jockey employed at the club on the night in questionprovided widely divergent accounts of the events that transpired in the club prior to the killing.The Spanish-speaking disc jockey testified at trial that he overheard the defendant, thecodefendant Sweeney, and Mohammad plotting the murder of the victim in English as they sattogether at the bar, and that Sweeney and Mohammed were employed as bouncers at the club.Nevertheless, the disc jockey failed to mention this crucial conversation when he initially spoketo a detective about the crime. Additionally, the disc jockey claimed that he could understandEnglish well and, thus, was able to comprehend the nature of the men's conversation. However,he subsequently admitted that, one week after these events, he required—as he did attrial—the assistance of a Spanish translator to understand a threat allegedly made to himby the defendant in English because "at that time I was not able to understand a lot."Furthermore, the disc jockey claimed that he quit his job at the club in response to this threatsome three weeks after the January 1993 murder, but he admitted on cross-examination that hehad actually already been fired from the job by that time. Moreover, the bartender insisted thatMohammad "[n]ever" worked at the club, that the men stood near the entrance of the club anddid not sit near the bar, and that the disc jockey was across the room playing music at the timethe defendant and Sweeney were conversing near the entrance, making it impossible for her tooverhear anything they said from her position, which was closer to the men than that of the discjockey.
Even more damaging to the credibility of the disc jockey was the fact that the defenseproduced witnesses and photographic evidence persuasively indicating that the disc jockeyactually continued to work at the club for several years after the killing, until he was fired inmid-1996. Similarly, while the bartender testified that only Mohammad escorted the victim to therear door of the club, and that Sweeney was present at his security post at the club's entrancewhen she left the premises approximately 20 minutes later, the disc jockey testified that bothSweeney and Mohammad escorted the victim out through the rear door, and that Sweeney did notreturn to the club until approximately one hour later, when the disc jockey let him in through therear door. The bartender further asserted that the defendant told her "Mohammad killed the guy"prior to her departure from the club some time before 5:00 a.m. However, the testimony of aneyewitness to the shooting, the contents of a recording of a telephone call to the 911 emergencynumber, and the testimony of the responding police officer established that the shooting did noteven occur until approximately 5:20 a.m. Police evidence further established that the bartendertold an investigating detective that she did not learn of the victim's death until the day after itoccurred, a statement which she insisted at trial that she never made to the detective. Moreover,despite their claims that they both were deeply disturbed by the events to which they testified,neither the disc jockey nor the bartender promptly reported the alleged murder conspiracy to thepolice. Indeed, the bartender admitted that she never reported it, while the credible evidenceindicates that the disc jockey waited some 11 years, during which he relocated to Florida andthen returned to New York, before he reported the matter to the police after he happened to seethe defendant in a laundromat.
Similar problems existed with regard to the testimony of the prosecution witnesses whoobserved events outside the social club. For example, witness Ralph Rivera lived on 77th Street,and was a self-styled "community activist" and "community leader" who visited with the localpolice "nearly every day," and had taken some classes on police procedures at the New York CityPolice Academy. Rivera claimed that, from his fifth-floor apartment, he witnessed two assailantsbeat up the victim, who repeatedly cried out in Spanish "Oh my God, forgive me." According toRivera, one of the assailants then dragged the victim across the street and shot him while theother stood some distance away and appeared to act as a lookout. Rivera further believed that hesaw one of the assailants enter a burgundy or red car on 37th Road. However, when the [*3]recordings of the 911 telephone calls made by Rivera were playedat trial, they demonstrated that he initially described the incident as a mugging and, contrary tohis trial testimony, the recordings revealed that he mentioned only one assailant throughout hisconversation with the 911 operator, which took place simultaneously with his observation of theevents. Furthermore, while Rivera provided fairly detailed descriptions of the builds and somefacial features of the two assailants at trial, he told the 911 operator, contemporaneously with hisobservations, that he was unable to provide a description of the lone assailant. Additionally,when police officers arrived at the murder scene, Rivera again referred to only one assailant. Hethen rode with them as they canvassed the area, and he identified one Gregory Freeman, apassenger in a blue car on 41st Avenue, as the shooter, indicating that he was 99% certain of hisidentification. Nevertheless, when he subsequently viewed a lineup at the police precinct, Riverabecame so unsure of his identification of Freeman that the police voided Freeman's arrest inconnection with the murder of the victim.
Robert O'Connor, the driver of the blue car in which Gregory Freeman had been a passenger,also testified on behalf of the prosecution. O'Connor and his passengers, who had used cocaineearlier that night, were in this area of Jackson Heights known for a high volume of drug saleactivities at about the time of the killing in order to steal cocaine from drug dealers. O'Connortestified that he observed two men attacking a third person in the vicinity of 37th Road, and thatGregory Freeman exited the vehicle and attempted to interfere with the attack, only to be warnedby one of the men that the matter was none of his concern. However, in stark contrast to Rivera'stestimony, the victim that O'Connor saw was a woman and, according to O'Connor, sherepeatedly screamed, in English, "Please don't. Somebody help me." O'Connor testified that hehonked his horn in an effort to draw attention to the incident and help the woman. He did notwitness the shooting of Yamile Puentes.
The testimony of these prosecution witnesses was so contradictory, and was so inconsistentwith the police testimony and other evidence in so many key respects, that it could not crediblysupport the defendant's conviction of murder in the second degree. Accordingly, we reverse theconviction as against the weight of the evidence (see People v Fortunato, 70 AD3d 851 [2010]; People v Zephyrin, 52 AD3d 543[2008]; People v Giocastro, 210 AD2d 254 [1994]).
In view of the foregoing, we need not consider the defendant's remaining contentions.Mastro, J.P., Hall, Lott and Cohen, JJ., concur.