| People v Galtieri |
| 2017 NY Slip Op 04857 [151 AD3d 879] |
| June 14, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v John Galtieri, Appellant. |
Seymour W. James, Jr., New York, NY (Svetlana M. Kornfeind of counsel), for appellant,and appellant pro se.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Paul M.Tarr of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney,J.), rendered May 27, 2009, convicting him of murder in the second degree and criminalpossession of a weapon in the second degree (three counts), upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a weapon in the second degree pursuant to Penal Law § 265.03 (3)under count four of the indictment, vacating the sentence imposed thereon, and dismissing thatcount of the indictment; as so modified, the judgment is affirmed.
The defendant, a retired New York City Police Department (hereinafter NYPD) policeofficer, was convicted of murder in the second degree and three counts of criminal possession ofa weapon in the second degree in connection with the shooting death of his former wife(hereinafter the victim). At trial, the People presented evidence that, during their marriage, thedefendant had physically assaulted and threatened the victim and that, at some point, the victimand the daughter of the defendant and the victim moved out of the marital home. The evidencealso demonstrated that the defendant and the victim were divorced in 2003 after several years ofcontentious matrimonial litigation. A judgment of divorce was entered by a court in New Jerseyawarding the victim $400,000 plus $2,200 per month in permanent alimony, 50% of the proceedsof a mortgage, and $30,000 for jewelry the defendant had taken.
After a lengthy period of time in which the defendant failed to pay any of the monies he wasrequired to pay by the judgment of divorce, a New Jersey domestic relations order directed theNYPD Pension Fund (hereinafter the Pension Fund) to send almost the entirety of the defendant'spension benefits to the victim. The People presented the testimony of the general counsel of thePension Fund, who testified that the defendant regularly complained to her via telephone andletters when he learned that the bulk of his pension had been garnished in favor of the victim, andthat the defendant threatened to file and then subsequently did file a lawsuit against the PensionFund in connection with its compliance with the garnishment. At the time of the shooting, thevictim had been receiving $2,722 of the pension each month and the defendant had been [*2]receiving $7.05.
On January 30, 2007, surveillance video at the Richmond County Supreme Court depictedthe defendant entering the building at some point after 9:00 a.m. According to two court clerkswho testified at the trial, the defendant told them on that day that he had driven up from Floridaand was planning to stay around the area for a while. He told one of the clerks that he was suingthe City of New York "in reference to his pension" " because [$7 is] all he's getting." Thedefendant left the courthouse around 11:00 a.m.
At approximately 5:51 p.m. that same day, the victim was shot to death in the daughter's carwhile waiting to pick up the daughter at a park-and-ride in Staten Island. A Staten IslandHighway Patrolman testified that he was parked in an unmarked patrol car at the park-and- ridewhen he heard gunshots that were so loud he thought they were fired at him. He saw the taillightsof a vehicle leaving the park-and-ride and heading toward Richmond Parkway. The patrolmantestified that as he exited the park-and-ride in pursuit of the vehicle, he saw the victim slumpedin the driver's seat of the car with a gunshot wound to her head.
A detective who responded to the scene shortly thereafter viewed surveillance video of thepark-and-ride and observed a vehicle that appeared to be a dark Chrysler Concorde in thatlocation shortly before the shooting. The same vehicle was seen in videos taken by other camerasin the park-and-ride. That detective learned that the defendant owned a 2002 gray ChryslerConcorde, and later that night a nationwide alarm was put out to law enforcement to be on thelookout for the defendant's vehicle. The defendant was stopped and arrested by a South Carolinapolice officer the next morning at approximately 9:25 a.m. At the time of the arrest, the SouthCarolina police found a .22 caliber handgun in the defendant's trunk. Thereafter, ballistics testingestablished that the murder weapon was a .38 caliber handgun, not the .22 caliber handgunrecovered from the defendant's trunk. The murder weapon was not recovered.
At trial, the daughter testified that she had witnessed the defendant physically assault andverbally abuse the victim during the course of the marriage. The People also elicited testimonyand introduced documentary evidence, inter alia, pertaining to the divorce litigation, thegarnishment of the defendant's pension, a note the defendant had left on the daughter's car in2005, and statements the defendant had made to a coworker a month or two before the incident tothe effect that he would "like to kill the bitch," referring to the victim, and that he would "like toshoot" her.
In addition, the People introduced expert forensic testimony comparing photos taken fromthe surveillance videos with photos of the 2002 gray Chrysler Concorde that the defendant wasdriving when he was stopped in South Carolina. The forensic expert compared certaindistinguishing features of the defendant's car with the car depicted in the surveillance videos andalso pointed out identifying features, such as decals and objects seen through the window, on thecar in the surveillance videos that matched the same items on and in the defendant's vehicle. Theexpert also compared surveillance video from the courthouse showing a distinctive multicoloredjacket worn by the defendant with surveillance video from the park-and-ride lot later thatafternoon, which shows a man resembling the defendant holding a similar jacket.
The jury subsequently convicted the defendant of murder in the second degree and threecounts of criminal possession of a weapon in the second degree.
Contrary to the defendant's contention, the Supreme Court's Molineux ruling (seePeople v Molineux, 168 NY 264 [1901]) constituted a provident exercise of discretion. Theevidence at issue was admissible as relevant background material to explain to the jury thesequence of events and the relationship between the defendant and the victim, and as evidence ofthe defendant's motive and intent (seePeople v Jones, 21 NY3d 449, 456 [2013]; People v Smalls, 145 AD3d 802, 802 [2016]; People v Paige, 134 AD3d 1048,1056 [2015]; People v Bruno, 127AD3d 986, 986 [2015]).
The defendant's contention, raised in his pro se supplemental brief, that he was deprived ofthe effective assistance of counsel is based, in part, on matter appearing on the record [*3]and, in part, on matter outside the record, and thus constitutes a"mixed claim" of ineffective assistance (People v Maxwell, 89 AD3d 1108, 1109 [2011]). In this case, it isnot evident from the matter appearing on the record that the defendant was deprived of theeffective assistance of counsel (seePeople v Marryshow, 135 AD3d 964, 965 [2016]). Since the defendant's claim ofineffective assistance of counsel cannot be resolved without reference to matter outside therecord, a CPL 440.10 proceeding would be the appropriate forum for reviewing the claim in itsentirety (see id. at 965; People vFreeman, 93 AD3d 805, 806 [2012]).
The defendant was convicted of three counts of criminal possession of a weapon in thesecond degree. The first two convictions (Penal Law § 265.03 [1] [b]; [3]), undercounts two and three of the indictment, respectively, relate to the murder weapon that was neverfound. The third conviction (Penal Law § 265.03 [3]), under count four of theindictment, relates to the .22 caliber handgun that was found in the trunk of the defendant'svehicle when he was stopped in South Carolina. The defendant contends that the evidence waslegally insufficient with respect to the conviction under count four of the indictment. Thedefendant correctly contends that the People failed to establish with legally sufficient evidencethat New York State had territorial jurisdiction to prosecute that crime because the .22 caliberhandgun was not the murder weapon. Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was notlegally sufficient to establish, beyond a reasonable doubt, that the defendant's possession of thegun—an element of the offense—occurred within this State (see CPL 20.20[1] [a]; People v Greene, 3 AD2d 768 [1957]). Accordingly, that conviction must bevacated, the sentence imposed thereon vacated, and that count of the indictment dismissed.
The defendant's remaining contentions, raised in his pro se supplemental brief, are withoutmerit. Mastro, J.P., Sgroi, Maltese and Duffy, JJ., concur.