Professional Documents
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PROCEDURAL HISTORY
OPINION BELOW
Defendant helped Albini to meet with Stec on the night she was
killed, and the Defendant arranged for the disposal of the body.
People v. LaBruna, 66 A.D.2d 300, 382, 414 N.Y.S.2d 380, 303 (4th
Dep’t. 1979). Therefore, the court believed that the jury could
reasonably infer from these facts that the Defendant acted with
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The totality of the evidence, however, did not persuade the
could not escape the conclusion that Albini may not have formed
the intent to murder until the moment he did so. If Gino Albini
that Gino Albini did premeditate the murder, the record failed
Albini, rather than from the acts of the Defendant himself. Id.
at 306, 414 N.Y.S.2d at 384. When the dissent examined the sole
victim from her home, his presence during the murder, and his
disposal of the body, the judge pointed out that all of these
of the murder, and the record here lacked that information: “No
during the time Albini drew his gun and fired.” Id. at 306-07,
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record could point to for verification of the Defendant’s intent
at the time of the shooting was his disposal of the body after
had any desire to murder the victim. One could not glean a
STANDARD OF REVIEW
22 (1995).
STATEMENT OF FACTS
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The bulk of the evidence against the Defendant was derived
533) in return for his testimony. Mr. Marinola and Mr. Purpera
at 755).
hour, returned, took a gun from a drawer, paced around the house
while looking out the front window, and left when someone honked
228, 232). Newland then drove Albini to New York City where he
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Albini was found dead shortly thereafter in a parking lot in
night of the murder and said that he had killed somebody (R. at
(R. at 289). The Defendant and Purpera went into the field
said that Albini was a “maniac” (R. at 311), “always very high
into a field to look for a body (R. at 346, 351). The Defendant
found the body (R. at 351,) and stated to him, “Man, this chic
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he said that he believed he had no other alternative (R. at
with the Defendant sometime between May 1972 and August 1973 (R.
was at the Ivanhoe Restaurant with Albini and Elayne Stec when
Albini got into a fight (R. at 482). The man Albini fought died
the next day (R. at 481). The Defendant then told Willette that
that the Defendant told him that Albini had murdered Stec (R. at
482), and that he was with Albini when he murdered her (R. at
testify against the Defendant (R. at 517) until April 14, 1976
520).
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Chief Leo Donovan offered conflicting testimony about law
then stated that they began looking for Stec three or four days
after she disappeared because they had “received word that she
at 412). That word came on May 27 or 28, 1970 from FBI agent
Frank Connors who told Donovan that Stec witnessed the death of
Thomas Trent at the Ivanhoe (R. at 414). After that, the police
called the Stec household and spoke to Elayne Stec’s mother, and
next time Sergeant Dove went out there, Elayne Stec’s mother
told him that Elayne was missing” (R. at 412). However, Donovan
testified that Dove was sent to the Stec household on May 28,
1970 (R. at 448) when he could not possibly have learned that
Stec was missing because she did not disappear until June 2,
1970.
The judge advised the jury that they could not find the
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Willette. He stated, “Our law provides that a person may not be
provided this admission, the judge charged that the jury “must
further find other credible facts that the crime of murder was
of guilty.
for the murder may impute guilt to the principal actor, but one
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could have concluded that the circumstantial evidence in the
THE ARGUMENT
criminally liable for such conduct when, acting with the mental
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shared his intent to kill the victim. In order to show that the
at the murder scene and the disposal of the body are wholly
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the Defendant colluded with the principal in the premeditation
of the crime.
testified that she was with Albini that night when he received a
rules out the possibility that there was a murder plan stirring
between the Defendant and Albini that evening. The law provides
evident from the facts on the record, therefore the jury could
one.
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II.THE DEFENDANT FORMED NO
INDEPENDENT DESIGN TO
KILL.
intimidate. Fasano was armed with a gun and Monaco knew that he
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shown to exclude other fair inferences.” Id. at 43-44, 248
the Defendant knew that Gino Albini was carrying a loaded hand
gun when he killed Stec, let alone that there was any concerted
from the evidence.” Id. at 43, 248 N.Y.S.2d at 41. The jury’s
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of the subjective intent of the accessory while the crime is
926, 440 N.Y.S.2d 674, 675 (2nd Dep’t. 1981) stated "Mere
is missing.
the car while Richard was seated inside the car. The Court of
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Just like the evidence in LaBelle, the evidence here only
reflects that the Defendant was present when the crime occurred,
a case, “it must appear that the inference of guilt is the only
one that can fairly and reasonably be drawn from the facts, and
A.D.3d 709, 711; 767 N.Y.S.2d 154, 156 (3rd Dep’t. 2003). For
is the only one that can be fairly and reasonably drawn. (See
inference.”)
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The recent Court of Appeals decision People v. Ficcarota,
involving the use of the gun. This is conduct that imputes both
motive and intent to the Defendant and also the kind of conduct
trunk area wearing a white coat, the front of which he held shut
intended her murder does not logically emanate from this missing
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compelling.” People v. Cleague, 22 N.Y.2d 363, 367, 292
to the defendant who actually struck the blow, that act is not
470, 470 N.Y.S.2d 50, 51 (2nd Dep’t. 1984), “The People did not
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of one’s state of mind. Motive derives its importance as an
(Matthew Bender & Co., Inc. et al. eds., 2004). Since the
Defendant told him that they were concerned Stec may give the
wanted to talk to her nor that Albini knew the police had
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learned of her identity. In order for this motive theory to
hold up, Albini must somehow have known that the police were on
If she was too afraid to meet him out of the house, one must
where the Court set aside the jury verdict and dismissed the
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another fleeing the scene, and the Defendant running in the
with Wysinger and his presence in the area of the murder with a
These same questions exist in the case at bar, and they shed
reversed.
CONCLUSION
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The Defendant’s conviction should be reversed because no
Respectfully Submitted,
_______________________
LORA E. COMO, ESQ.
Attorney for Defendant-Appellant
MAILBOX 561
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