People v Carini

[*1] People v Carini 2007 NY Slip Op 50968(U) [15 Misc 3d 1133(A)] Decided on May 10, 2007 Supreme Court, Kings County Mangano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2007
Supreme Court, Kings County

People of the State of New York

against

Carmine Carini



1487/84



Ronald L. Kuby, Esq.

David Pressman, Esq.

For the Defendant

Anna-Sigga Nicolazzi, Esq.

Penny Mintz, Esq.

Assistant District Attorneys

Guy J. Mangano, J.

The defendant stands convicted of Murder in the Second Degree (Penal Law § 125.25); Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03); and Criminal Possession of Stolen Property in the Third Degree (Penal Law § 165.50) for the 1983 murder of record store owner, Verdi Kaja. On August 14, 1985, defendant was sentenced to concurrent terms of imprisonment of twenty-five years to life on the murder conviction, five to fifteen years on the conviction for criminal possession of a weapon, and one year on the conviction for criminal possession of stolen property (Heller, J., at trial and sentence).

According to the evidence adduced at trial, on November 18, 1983, defendant summoned Verdi Kaja into a vehicle which was parked in front of Kaja's apartment building. After defendant drove several blocks, Kaja was shot in the head three times and pushed out of the car, which then sped away.

By notice of motion dated December 20, 2006, defendant brings this motion pursuant to CPL 440.10 seeking to vacate the judgment of conviction on the ground of newly discovered evidence. The motion alleges that two former members of organized crime have relayed information to federal prosecutors about the instant murder case and that defendant, Carmine Carini, is innocent of the [*2]crime. Specifically, Vincent Carini, the defendant's cousin, told the federal witnesses, Frank Smith and Salvatore "Fat Sal" Mangiavillano, that Vincent had committed the murder for which his cousin was convicted. The People did not oppose a hearing on defendant's motion which was held before this Court on February 27 and 28, 2007.

PROCEDURAL HISTORY

Subsequent to the judgment of conviction, defendant, through counsel, appealed to the Appellate Division, Second Department, arguing, inter alia, that the trial court improperly admitted a page of the victim's business ledger into evidence, improperly allowed the victim's eleven year old daughter to testify under oath and that the Court, itself, impermissibly questioned the People's witnesses. Moreover, defendant argued that photographs of the crime scene wherein the victim's body also appeared were improperly admitted into evidence and that defendant was denied effective assistance of counsel. Finding no such errors occurred at the trial, defendant's conviction was affirmed (People v Carini, 139 AD2d 753 [2d Dept 1988]). Leave to appeal to the Court of Appeals was denied (People v Carini, 72 NY2d 916 [1988]).

On July 8, 1991, defendant filed his first motion for a writ of error coram nobis, claiming that appellate counsel was ineffective for failing to make the following claims upon the direct appeal: that the trial court improperly substituted an alternate juror for one of the sworn jurors who had returned late from the lunch recess and that trial counsel failed to object to the substitution of the juror.

By decision and order dated February 10, 1992, the Appellate Division held that defendant failed to establish that appellate counsel was ineffective and thus, denied defendant's writ (People v Carini, No. 91-06476 [2d Dept Feb. 10, 1992], lv denied 79 NY2d 1047). By Certificate Dismissing Application dated May 20, 1992, a judge of the Court of Appeals dismissed defendant's application for leave to appeal from the denial of his motion for reargument on the ground that the order sought to be appealed was not appealable under CPL 450.90(1) (People v Carini, 80 NY2d 902).

On May 23, 1995, defendant, appearing pro se, filed his first motion to vacate the judgment of conviction pursuant to CPL 440.10, claiming that the trial court submitted an improper verdict sheet to the jury and denied defense counsel an opportunity to object to it. On August 2, 1995, a Justice of this Court ruled that defendant's claims were without merit and mandatorily barred from review pursuant to CPL 440.10(2) (c) because defendant could have, but unreasonably failed to, raise the claims on direct appeal (People v Carini, Ind. No. 1487/84 [Sup Ct, Kings County 1995] (Vaughan, J.)).

By papers dated May 20, 1996, defendant, appearing pro se, filed a second application for a writ of error coram nobis, arguing that his appellate counsel was ineffective for failing to argue that the trial court had submitted an improper verdict sheet. By decision and order dated September 23, 1996, the Appellate Division, Second Department, denied defendant's second application for a writ of error coram nobis (People v Carini, 231 AD2d 645 (2d Dept 1996), cert denied 534 US 856 (2001)).

On April 22, 1997, defendant, with the assistance of counsel, filed an application for a writ of habeas corpus with the United States District Court for the Eastern District of New York, arguing that trial counsel was ineffective for failing to object to the discharge of a juror who returned late from the lunch recess; that appellate counsel was ineffective for failing to claim that the trial court had erred in discharging the juror; and that the trial court improperly submitted a verdict sheet [*3]containing some of the elements of the crimes charged to the jury.

By order dated December 1, 1998, the District Court denied defendant's habeas petition, and by order dated March 15, 2000, the United States Court of Appeals for the Second Circuit denied defendant's application for a certificate of appealability. By order dated October 2, 2000, the Supreme Court of the United States denied defendant's petition for a writ of certiorari (Carini v Artuz, 531 US 822).

Through papers dated September 19, 2000, defendant, appearing pro se, filed a third application for a writ of error coram nobis. This time, defendant claimed that his appellate counsel was ineffective by failing to argue that his trial counsel did not object to the substitution of the juror or to the use of an annotated verdict sheet. By decision and order dated December 16, 2000, the Appellate Division, Second Department denied defendant's third application for a writ of error coram nobis (People v Carini, 278 AD2d 504 [2d Dept 2000], cert denied 534 US 856).

In a letter dated June 21, 2004, from Assistant United States Attorney Patricia E. Notopoulos to Kenneth Taub, Chief of the Kings County District Attorney's Homicide Bureau, Ms. Notopoulos informed Mr. Taub that two federal cooperating witnesses, Frank Smith and Salvatore "Fat Sal" Mangiavillano, both of whom Ms. Notopoulos considered to be reliable, had informed the United States Attorney's Office that Vincent Carini had confessed to them that he had shot and killed Verdi Kaja.

On July 6, 2004, Mr. Taub forwarded Ms. Notopoulos' letter to defendant with the advice that defendant should discuss the information contained in the letter with an attorney, which, as discussed below, defendant did.

FINDINGS OF FACT

On February 27 and 28, 2007, this Court conducted a hearing based upon the allegations raised in defendant's moving papers that evidence had been newly discovered subsequent to the 1984 trial at which defendant was found guilty of murder in the second degree. The defendant called two witnesses, Frank Smith and Salvatore "Fat Sal" Mangiavillano. The Court finds the witnesses to be credible.[FN1]

The first witness to testify at the hearing was Frank Smith, a former associate of the Lucchese crime family. Mr. Smith, now 41 years of age, began his criminal career as a car thief when he was approximately 15 or 16 years old. In the early 1980's, Mr. Smith became associated with brothers, Vincent and Eddie Carini. The Carini brothers were known to Mr. Smith as "[t]ough guys, tough guys and killers," and young Mr. Smith would steal cars for them with the understanding that the Carinis would use the stolen vehicles to commit murder.[FN2] During this time period, Mr. Smith also [*4]casually knew defendant Carmine Carini, Vincent's and Eddie's cousin. The witness was also familiar with a friend of both Vincent and Carmine Carini, Salvatore Puzzo, also known as "Sally the Geep."

In November 1983, Vincent Carini asked Mr. Smith to steal a four door vehicle and to "pop" the interior light.[FN3] Mr. Smith obliged and delivered the requested vehicle to Vincent and Salvatore Puzzo near the vicinity of 72nd Street and 18th Avenue, Brooklyn. As was usual, Mr. Smith was paid $200 for the vehicle. In the years that followed, Mr. Smith began participating in more serious crimes with the Carini brothers, including murder. Mr. Smith stated that he committed approximately five murders with the Carini brothers, including the 1987 botched murder of United States Attorney William Aronwald. The Aronwald murder was committed at the behest of Joel J. Cacace, a/k/a Joe Waverly, a high ranking member of the Columbo crime family. The Carini brothers, however, mistakenly killed the elderly father of the intended target, George Aronwald, a retired part time civil servant and administrative judge. Both Vincent and Eddie Carini were themselves killed shortly after the bungled Aronwald murder. Frank Smith blamed his friends' death on Joseph Waverly.

Prior to Vincent's death, Mr. Smith recalled several conversations he had with his friend, Vincent, wherein Vincent admitted that his cousin, Carmine Carini, was imprisoned for a murder committed by Vincent. In these conversations, Vincent explained that he killed the owner of a record store, Verdi Kaja, because he owed Mr. Kaja thousands of dollars in debts and Mr. Kaja threatened to involve the police and district attorney if he was not repaid. Vincent provided details about the crime, relaying to Mr. Smith that he and Salvatore Puzzo drove to the victim's home and beeped the horn to summon Mr. Kaja who exited his house and entered the right front passenger side of the vehicle. While Mr. Puzzo drove the vehicle, Vincent sat in the rear and shot Mr. Kaja in the head.[FN4]

In January 2003, Mr. Smith, who was serving a state sentence for a narcotics conviction, entered into a written cooperation agreement with the United States Attorney's Office. Mr. Smith based his decision to offer testimony upon his disappointment with Joe Waverly's failure to assist him with money and legal assistance while incarcerated. The agreement, entered into evidence, requires Mr. Smith, inter alia, "[t]o tell the truth at all times about any past criminal activity that [he] was ever involved in." Mr. Smith's debriefing continued for months and included information about "countless crimes" and homicides that he and other members of organized crime committed. Notably, this debriefing included questions regarding the murder of Verdi Kaja. Frank Smith has [*5]proven to be an invaluable and reliable informant for the federal government, testifying at trials to convict high-ranking members of organized crime and providing information regarding a murder plot against then-United States Attorney, Rudy Giuliani.

As stated above, Mr. Smith knew Carmine Carini through his relationship with Vincent and Eddie Carini. Moreover, from 1992 to 1994, while serving the state sentence for the narcotics conviction, Mr. Smith and Carmine Carini were housed together in the Shawangunk Correctional Facility. According to Mr. Smith's testimony, the two men saw each other daily and had conversations regarding Carmine's innocence.[FN5] However, on these prior occasions, neither man provided any specific statements or information regarding the Kaja murder.[FN6]

The second and only other witness to testify was Salvatore Mangiavillano, a/k/a Fat Sal, a former associate of the Gambino crime family. Fat Sal was a few years older than Vincent Carini and a contemporary and high school classmate of Eddie Carini. While Mr. Mangiavillano admitted to being a car thief, he denied committing crimes with the Carini brothers. He did acknowledge, however, the brothers' violent criminal activity. Moreover, Fat Sal knew defendant Carmine Carini and his propensity for stealing cars as well. Regarding his knowledge of the underlying conviction of defendant, Mr. Mangiavillano recalled a conversation between himself and Vincent Carini. Mr. Mangiavillano testified:

"I was driving by his mom's house. I seen him standing outside his mom's house. His mom's house, I believe to be on 88th Street and 17th Avenue across the street from the school yard. Anyway, I seen him standing there. I pulled over and I seen that he was sobbing, he was crying. I asked him what was the matter and he told me my cousin Carmine just got convicted for a murder that I did."

When asked why he did not encourage Vincent Carini to come forward and tell the truth

about the murder, Mr. Mangiavillano responded, "[b]ecause we're both street guys. And if I tell them go do that is like ratting on himself, he is a rat. If I tell him to do that I'm a rat." Fat Sal continued, "[a]t the time I wouldn't even think about becoming a rat. There was no reason for me [*6]to become a rat. And I just lived by the criminal code where I wouldn't tell on anybody, no matter what the situation was." When asked on direct examination what happens to "rats," Mr. Mangiavillano stated, "[t]hey're rats, they get killed or a lot of other bad things. You get hurt, get murdered, your family could get murdered."

As was the case with Frank Smith, Mr. Mangiavillano departed from this "code" and became an informant for the federal government after he came to the realization that he would spend the rest of his life in prison, where he was concerned for his safety given the climate of organized crime at the time.

As stated, the information obtained from Frank Smith and Salvatore Mangiavillano concerning defendant Carmine Carini's lack of involvement in the 1983 murder of record store owner Verdi Kaja came about through months of debriefings revealing "countless" crimes. After the witnesses offered separately unsolicited and corroborating statements concerning Vincent Carini's inculpation in the instant 1984 state murder conviction which exculpated defendant Carmine Carini, the United States Attorney's Office informed the chief of the homicide bureau of the Kings County District Attorney's Office about these statements. To the People's credit, a copy of this correspondence was immediately forwarded to Carmine Carini which set in motion the instant request to vacate the judgment of conviction. Once armed with the evidence, Mr. Carini contacted a private investigator and an attorney. Frank Smith and Salvatore Mangiavillano were interviewed and due to the illness of defendant's first attorney, defendant sought the representation of alternate counsel to bring the instant motion. In December 2004, defendant contacted the Second Look Program at Brooklyn Law School and continued the application process for that program through April 2005. Defendant continued in his efforts to obtain representation and eventually retained present counsel, Kuby & Perez, on October 18, 2005. Counsel had the completed file and necessary transcripts by mid-January 2006, and due to its heavy case load, the firm could not file the instant motion until December 20, 2006.

CONCLUSIONS OF LAW

In order to establish that evidence is newly discovered within the meaning of CPL 440.10 (1) (g), there are six requirements which must be met : "(1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could have not been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be cumulative to the former issue; and, (6) it must not be merely impeaching or contradicting the former evidence" (People v Priori, 164 NY 459; see also People v Salemi, 309 NY 208). The Court is bound by the strict statutory requirements (see People v Williams, 134 AD2d 304, lv denied 71 NY2d 904), and the newly discovered evidence must be of a nature which would render it admissible at the re-trial (see People v Boyette, 201 AD2d 490, lv denied 83 NY2d 909; People v Cole, 1 Misc 3d 531 [Sup Ct, Kings County]; People v Dabbs, 154 Misc 2d 671 [Sup Ct, Westchester County]; see also People v Fields, 66 NY2d 876).

After reading all the parties' submissions and conducting the hearing in this matter, the Court finds that the statutory criteria for a new trial based upon the introduction of newly discovered evidence exists. The evidence was obviously not available to the defendant at the time of the trial in 1984, and was discovered only through the extensive debriefing of former mobsters by the United States Attorney's Office. The federal government then informed the chief of the Kings County District Attorney's Homicide Bureau, who, in turn, notified defendant of the existence of the [*7]evidence. It cannot be said that the evidence is cumulative or not directly material to defendant's guilt or innocence, and the newly discovered evidence does not merely impeach or contradict the former evidence.

What concerns this Court and requires careful and more detailed consideration is whether defendant acted with due diligence in bringing the instant motion upon learning of the evidence, whether the evidence would be admissible at the new trial as declarations against penal interest and whether the evidence would probably change the outcome of the new trial.

Due Diligence

As for the diligence in which defendant brought the instant motion, this Court will gauge defendant's timeliness from July 6, 2004, the date of the letter from Kenneth Taub, which included the letter from Assistant United States Attorney Notopoulos. While the People argue that defendant was aware of this evidence sometime between 1992 and 1994 while he and Frank Smith were serving their respective sentences housed in the Shawangunk Correctional Facility, there is no way a viable motion to vacate the judgment pursuant to CPL 440.10 could have been brought at that time. First, as stated above and relayed at the hearing, Mr. Smith never provided defendant with any specific statements regarding Vincent Carini's involvement in the murder of Kaja Verdi. Moreover, the credible testimony of Frank Smith establishes that Mr. Smith would not have provided defendant with an affidavit memorializing the generalized statements made by Vincent Carini, and would not have, at that time, agreed to testify. While not countenancing the rules of organized crime or taking judicial notice of the "code" of silence, it is quite obvious what would have happened to defendant, Mr. Smith, or both; death or "persuasion" by cohorts not to pursue the matter further.[FN7] Without the requisite proof in admissible form, Carmine Carini would have submitted one of the many pro se CPL 440 motions to vacate the judgment which are routinely denied upon conclusory and unsupported grounds.

As previously indicated, a prerequisite for bringing a successful motion based upon newly discovered evidence is that the evidence is in fact admissible (see People v Boyette, 20 AD2d 490, supra; People v Cole, 1 Misc 3d 531, supra; People v Dabbs, 154 Misc 2d 671, supra). This evidence was not admissible until it was taken under oath and provided to defendant by the Kings County District Attorney's Office. With the above in mind, once defendant was made aware of the evidence through Mr. Taub's letter dated July 6, 2004, the record establishes Mr. Carini's due diligence in bringing the motion, including interviews with the two federal witnesses and the quest for alternate legal representation through correspondence with the Second Look Program at Brooklyn Law School, as well as other pro bono and retained attorneys.

In view of the foregoing, it cannot be said that defendant did not act with due diligence in bringing the instant motion once he was advised of the statements and undertook substantial efforts to obtain counsel. Moreover, completely contrary to the People's contention, there exists no rule in [*8]the State which requires this motion to be brought within one year, and prejudice could not be established by the People whether the motion was made in 2004 or 2006. Finally, defense counsel maintains a small yet busy practice. Given the nature of this matter, the passing of only eleven months from obtaining the completed file to making the motion cannot equate to a failure of due diligence as a matter of law (see People v Maynard, 183 AD2d 1099, appeal dismissed 80 NY2d 1022).

Declarations Against Penal Interest

The evidence which defendant seeks to admit at his new trial are the statements made by Vincent Carini to both Frank Smith and Salvatore "Fat Sal" Mangiavillano, concerning Carmine Carini's innocence in the murder of Kaja Verdi. While these statements are hearsay, defendant seeks their admission under the well settled exception to the hearsay rule, the declaration against penal interest. This hearsay exception "is premised upon the assumption that a person would not ordinarily make a statement that would jeopardize his interest by subjecting him to criminal prosecution and incarceration" (Morales v Portuondo, 154 F Supp 2d 706, 724 [SDNY 2001]; see also People v Settles, 46 NY2d 154; Chambers v Mississippi, 410 US 284). To constitute a declaration against penal interest and be admissible as an exception to the rule against hearsay, the proponent of the statement must satisfy the following four elements: "first, the declarant must be unavailable as a witness at trial; second, when the statement was made the declarant must be aware that it was adverse to his penal interest; third, the declarant must have competent knowledge of the facts underlying the statement; and, fourth, and most important, supporting circumstances independent of the statement itself must be present to attest to its trustworthiness and reliability" (People v Settles,46 NY2d 154, 167, supra). The fourth element requires "circumstances independent of the hearsay declaration itself . . . which fairly tend to support the assertions made and thereby assure their trustworthiness" (People v Thomas, 68 NY2d 194, 200, revd. on other grounds People v Hardy, 4 NY3d 192; see People v James, 93 NY2d 620). Further, "[a]lthough all proffered statements must meet these prerequisites, statements offered by a defendant as exculpatory evidence are held to a more lenient standard of scrutiny than those offered by the prosecution as inculpatory evidence" (Morales v Portuondo, 154 F Supp 2d 706, 724, supra; see People v Brensic, 70 NY2d 9). Since the statements which form the subject of this motion are intended to exculpate defendant, the fourth element "is met if there is sufficient evidence to establish[] a reasonable possibility that the [declarant's] statement might be true'" (Morales v Portuondo, supra, quoting People v Thomas, supra).

Applying this standard to the statements made by Vincent Carini, there is no issue regarding the declarant's availability; he is dead. In addition, Vincent admitted to two people on multiple occasions that he committed the murder of Verdi Kaja. Further, notwithstanding the "code" heretofore referenced which members of organized crime purport to live by, confessions did not always remain with the confessor. Not only could Vincent subject himself to criminal prosecution, but at the very least, ridicule from higher members of organized crime for violations of this code, as exhibited by being chastised by his older brother in the manner in which Verdi Kaja's body was needlessly dumped out of a stolen vehicle, and at the worst, death, which was his ultimate fate for the botched Aronwald murder. Moreover, Vincent had underlying knowledge of the murder of Verdi [*9]Kaja, including the type of vehicle used, the weapon and method of execution and disposal of the body, as well as the location and date of the crime.

Lastly, there is sufficient evidence independent of the declarations to assure their trustworthiness. First, the statements were made to two separate individuals on several different occasions (see People v Saraguard, 215 AD2d 411, lv denied 86 NY2d 784; People v Fonfrias, 204 AD2d 736; People v Smith, 195 AD2d 112, lv denied 83 NY2d 876 [five confessions made to two individuals]). Moreover, according to "Fat Sal" Mangiavillano, Vincent was crying when making the statement exculpating defendant which lends "assurance that the speaker is in a truth-telling frame of mind'" (People v Schmotzer, 87 AD2d 792, 793-94, Silverman, J., concurring, quoting People v Maerling, 46 NY2d 289, 297). Finally, further adding to other indicia of the statements' trustworthiness is the medical examiner's testimony at the trial with respect to the trajectory of the bullets which is supported by Vincent's account of the shooting that he fired the gun from the back seat of the vehicle. Moreover, in his statement to Frank Smith, Vincent refers to the victim as "the record deal guy . . . that they would sell records stolen records and stuff;" Vincent explained that he killed the victim because of money he owed to the victim and the ledger book admitted into evidence at the trial provides evidence that "Carini" was given money; the vehicle that Frank Smith admitted stealing for Vincent was similar to the vehicle used in the murder; the manner in which the body was disposed is corroborated by Vincent's statements, and the statements came about only after months of governmental debriefing. The foregoing creates more than a "reasonable possibility" that Vincent's statements are true (see Morales v Portuondo, supra).

The People maintain that Frank Smith's statement regarding Sally the Geep as the driver of the vehicle in which the murder occurred cannot be deemed a declaration against penal interest since "[n]othing about Sal's alleged participation added to the self-incriminatory nature of Vinnie's statement." The People concede much of defendant's arguments regarding the credibility of the two witnesses, and have changed the theory advanced at the trial upon which they base Carmine Carini's culpability in the murder of Verdi Kaja.[FN8] In order to preserve the People's newly formed acting in concert theory that Carmine was the driver of the vehicle and Vincent pulled the trigger, the People argue that statements regarding Salvatore Puzzo's presence in the vehicle or participation in the crime do not fall within the declaration against penal interest analysis. To support this argument, the People assert that the familial-like relationship Frank Smith maintains with "the entire Carini family" gives Mr. Smith a motive to fabricate Mr. Puzzo's involvement. It strains the bounds of credulity, however, that Frank Smith would risk the rest of his life in prison and the possibility of losing the protection enjoyed as a witness for the federal government because of a relationship with defendant's family. This Court has read all submissions, presided over the hearing and read the record of the underlying murder trial. While the Court understands the importance to the People of a motive to embellish Sally the Geep's participation in order to sustain the acting in concert theory, the People's exaggerated relationship between Frank Smith and the Carini family is unsupported by the record and insufficient to create a motive to lie. Thus, Vincent's statements to Frank Smith regarding Mr. Puzzo's involvement in the murder of Verdi Kaja would be inextricably interwoven with the [*10]declaration against penal interest (see People v Vails, 43 NY2d 364; see also People v Ely, 68 NY2d 520; People v Crandall, 67 NY2d 111), and therefore admissible at defendant's re-trial for the reasons set forth above.[FN9]

Probability That Newly Discovered Evidence Would Change Outcome Of Re-Trial

Frank Smith and "Fat Sal" Mangiavillano have provided credible testimony that Vincent Carini made statements exculpating Carmine Carini for the murder of Verdi Kaja. The witnesses' testimony has been used by the federal government to convict many high and low ranking members of organized crime. Moreover, the witnesses have been afforded lenient sentences and the protection of the federal government for their efforts. Even the People concede their unimpeachable credibility and take issue with only a small portion of Frank Smith's testimony. Given the foregoing, there is no doubt that the newly discovered evidence would likely change the outcome of the retrial.

The witnesses' testimony has caused the People to change the theory of Carmine Carini's culpability from the actual shooter to the driver of the vehicle in which the victim was murdered, contrary to the testimony of the People's witnesses at the trial. Moreover, the new evidence will allow the defense to cross-examine the People's witnesses regarding the victim's log book and other business dealings with "Carmine" and "Carini,"as well as other possible motives, which was prohibited by the trial court in 1984. Finally, the forensic evidence regarding the bullets' trajectory is supported by Vincent Carini's statements and will better corroborate the medical examiner's testimony at the new trial.

Accordingly, based upon the foregoing, defendant's motion is granted and the judgment of conviction rendered August 14, 1985, is hereby vacated. Defendant is remanded to the Supreme Court, Kings County, for a new trial.

This shall constitute the Decision and Order of the Court._____________________________

HON. GUY J. MANGANO, JR.

JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1: The People, in both written memoranda and oral argument, find the witnesses to be credible as well. In the People's reply memorandum of law, it is stated: "To the extent that . . . Smith and Mangiavillano testified that Vinnie admitted to having been the person who shot Verdi Kaja, the People credit their testimony. Although the People concede that Vinnie admitted to Smith that Vinnie had fired the shots that killed Verdi, the People do not concede that the details of Smith's account of what Vinnie allegedly told him are credible."

Footnote 2: According to Mr. Smith, he stole mostly four door General Motors vehicles and was paid approximately $200 for each.

Footnote 3: According to Mr. Smith, destroying the interior light was common to prevent people outside the stolen vehicle from being able to identify its occupants.

Footnote 4: On another occasion, Mr. Smith was in the presence of Vincent and Eddie Carini and witnessed Eddie criticizing his brother for dumping the body of Verdi Kaja from the stolen vehicle. According to Mr. Smith "Eddie was scolding his brother Vincent. He said, are you a moron? He says, he says, you go and pick up somebody. You are in a stolen car. Shoot the guy and throw him out of the car? What is the purpose? He said, shoot the guy and get out of the car, just get out of the car and leave him." Eddie was in prison at the time of Verdi Kaja's murder.

Footnote 5: Mr. Smith relayed to the Court at the hearing the sum and substance of these conversations: "I says, you know Carmine, it's a sin what happened to you. I says, I'm very well aware of the fact that your cousin Vincent did the work and not you and here you're doing all this time for something he did. I know you're innocent, I said, I hope you catch a break. And he said, Frankie, I know you're innocent like everybody else does."

Footnote 6: At the hearing before this Court, the following colloquy took place during the People's cross-examination of Mr. Smith:

Q. Now going back to the conversations that you had with Carmine while you were incarcerated together with him. So from that point on, whenever it was, 92 or 93, early 94, he knew that you had information about his case, correct, because you told him?

A. I just said that I am I knew he was innocent. He didn't know what information that I had in my head.

Q. Well, you told him that you were the one who actually stolen [sic] the cars for his cousin?

A. No, I don't recall telling him that. I just told him that I knew that Vinny Carini is the one who killed the person he's convicted for. I don't remember telling Carmine that I stole the car and giving him specifics.

Footnote 7: To paraphrase defense counsel at oral argument, Carmine Carini may not have lived by the "code" of organized crime, but had he pursued the motion based upon some prison yard conversations with a known member of the Lucchese crime family, he would certainly have died by the code.

Footnote 8: At the trial, the People asserted that Carmine Carini was the shooter and only person involved in the murder.

Footnote 9: This Court also notes courts of this State which "have recently recognized a constitutionally-based exception to the hearsay prohibition for certain evidence offered by defendants in criminal cases" (Morales v Portuondo, supra; see People v Robinson, 89 NY2d 648; People v James, 242 AD2d 389; People v Esteves, 152 AD2d 406 [United States Constitution may require the admission of exculpatory statements which do not fall under any cognizable hearsay exception]; see also People v Seeley, 186 Misc 2d 715 [Sup Ct, Kings County]).