People v. Ozarowski

degree assault was not proved against each of them. In that regard, they urge that the finding of such intent made by the trial court, in this nonjury trial, was based on uncorroborated accomplice testimony and on postconspiracy statements which should not have been admitted against all defendants.

We affirm all the convictions for the reasons which follow.

In setting them out, it will be useful to outline the skein of events leading up to the assault. On March 1 and 2 of 1971, Russell DePasquale and Chester Ozarowski, the latter not a defendant in this case, were involved in separate altercations with different employees of Nathan’s, a fast-food restaurant located in the City of Yonkers. Each had been threatened by an employee with a bared knife or similar weapon; DePasquale had thrown a garbage can at his assailant in order to make good his escape. The evidence further indicated that there existed some sort of feud between the day shift at Nathan’s and a combination of young men of which Chester Ozarowski and Russell DePasquale were a part.

On the evening of March 2, members of this group gathered at the home of defendant Miller to discuss these incidents. DePasquale was present, but Chester Ozarowski was not. His brother, defendant Thomas Ozarowski, was there. Two witnesses, Joseph Artanis and Arlette Travalini, later testified that all of the defendants who are parties to this appeal were present in the apartment, save Santavicca. Artanis was an accomplice witness; Arlette was not.

Arlette, Artanis and other witnesses swore that all the six defendants present at Miller’s apartment left there to go to Nathan’s. In the lobby of the apartment house, they met Chester Ozarowski and two others, Gerard Fitzpatrick and Thomas Capasso. Arlette described how, while they were still in the lobby, Zakarin took a baseball bat from beneath his coat and handed it to Miller. Artanis testified that there were several baseball bats lying on a sofa in the room in Miller’s apartment itself when the decision to go to Nathan’s was made. Other witnesses, whose testimony is in substance undisputed, saw bats in the possession of various defendants that night.

They headed for Nathan’s in three cars. Santavicca was picked up en route by prearrangement. Arlette was dropped off at her home. When some of the defendants arrived at the planned meeting spot in a parking lot near Nathan’s, it was discovered that one of the cars had not arrived. Some of the

defendants returned to check on the missing car; eventually all arrived at the appointed place. Their movements were coordinate.

Testimony as to what occurred after they reached Nathan’s is less clear. Miller apparently entered Nathan’s to provoke an incident; he ordered pizza, accepted it, and then ran out without paying for it. Nathan’s employees did not respond with either violence or threatened violence. An employee of Nathan’s so testified. Fitzpatrick, Benenati, and Capasso apparently went to a candy store nearby, found it closed, and then sat or stood near a wall from which they could see the garbage area behind Nathan’s.

At about that time, Artanis saw Selim Rabadi, an employee of Nathan’s night shift not known to defendants, exit from the rear of the restaurant pushing a garbage cart, saw Chester Ozarowski emerge from the garbage bin holding something behind his back, and then saw Chester swing a bat at Rabadi’s head. The only evidence of motivation for this act is the events already described.

Rabadi, as a result of that blow, which fractured his skull, is paralyzed on one side of his body and has lost his vision, much of his hearing, control over his bodily functions, and, to some extent, control over his emotional behavior. Nevertheless, he was able to take the stand, his doctor having testified that, within limits, he was capable of giving accurate testimony. Rabadi’s description of the attack was somewhat different from that of Artanis. He recalled that, before blacking out, a group of youths beat him from behind while one of them held him by the neck in front. His story fits with that told by defendant O’Neill.

O’Neill, who gave statements to the police favoring the prosecution, was called by the People at a preliminary hearing, during the course of which he changed his story drastically, characterizing his earlier statements as lies told to the police out of fear. On the other hand, at the trial itself, on cross-examination, his story, while still restrained, reverted to some of its original version. For instance, he there testified that, in the apartment, Thomas Ozarowski had stated that his brother Chester was planning to go to Nathan’s to "talk” to the employee who had assailed him, that Thomas had expressed the desire to go with Chester as he expected trouble, and that the entire group then indicated its desire to go with Chester for the same reason. O’Neill further testified that,

that goal must have been a felony (Penal Law, § 105.05). In that connection, the defendants assert that, at most, the evidence falls short of proving the element of intent required for conviction of felonious assault, arguing that the proof supports only the existence of an agreement to go to Nathan’s to provoke a "fair fight” and that the baseball bats were taken along to be used in self-defense and only if opponents used knives as weapons. The difficulty with that argument is twofold. First, its emphasis on the form rather than the substance of the agreement between the defendants, does not alter its essentially factual character, whose determination adversely to defendants now stands affirmed by the Appellate Division. Second, the claim that the bats were taken along only for self-defense, a matter subject too to assessment for credibility, ignores subdivision 1 of section 35.15 of the Penal Law, which limits such a defense to situations in which defendants do not act as provocateurs.

However, that still leaves open the determination of whether the specific intent proved here supported the particular felonies towards which the indictment charges the conspiracy was directed. The People here were required to prove intent to commit the specific crimes charged against each of the defendants. Intent, like any other element of a crime, may be proved by circumstantial evidence. (People v Agron, 10 NY2d 130 , 140; People v Weiss, 290 NY 160 ; People v May, 9 AD2d 508 , 512; People v Leyra, 1 NY2d 199 , 206; People v Taddio, 292 NY 488 , 492.)

The inference of intent under the conspiracy doctrine presents special problems, however. As the United States Supreme Court has recently noted: "[W]e scrutinize the record for evidence of such intent with special care in a conspiracy case for, as we have indicated in a related context, 'charges of conspiracy are not to be made out by piling inference upon inference, thus fashioning ... a dragnet to draw in all substantive crimes.’ Direct Sales Co. v. United States, 319 U. S. 703 , 711 (1943). See also Ingram v. United States, 360 U. S. 672 , 680 (1959).” (Anderson v United States, 417 US 211 , 224.)

Our own case law supports this principle. In distinguishing the conspiracy case from the ordinary case in which a defendant’s own intent may be inferred from his actions, we stated: "Attempting to link Hernandez to Agron’s acts upon the theory of conspiracy, the prosecution was required to prove a separate premeditated intent to kill on the part of Hernandez

(People v. Weiss, 290 N. Y. 160 ; People v. Emieleta, 238 N. Y. 158 ; People v. May, 9 A D 2d 508 ). The present case is unlike the felony murder cases where mere intentional participation in the underlying felony renders all of the nonkiller participants equally guilty of first degree murder (People v. Wood, 8 N. Y. 2d 48 , 51; People v. Emieleta, supra, at p. 163 ; People v. May, supra). ” (People v Agron, 10 NY2d 130 , 135, supra.)

In the Agron case, the evidence as to whether defendant Hernandez knew of Agron’s possession of a knife on the night in question was conflicting. We therefore refused to affirm Hernandez’ conviction on a conspiracy theory, since the facts which were used to show his intent did not exclude to a moral certainty all other possible conclusions (p 140). We did, however, sustain the conviction of defendant Agron, noting that his contention that he had only meant to injure and not to kill was of no avail: "This, of course, does not constitute a defense, since defendant is presumed to have intended the natural and necessary consequences of his acts (People v. Schmidt, 168 N. Y. 568 , 574, 576). 'The weapon used and the vital part of the body on which the blow was inflicted justified the jury in finding that the defendant intended to take life.’ (People v. Schmidt, supra; People v. Emieleta, 238 N. Y. 158 , 162, supra). ” (People v Agron, supra, 139 .)

And we said in People v Weiss ( 290 NY 160 , 171, supra): "The court charged that if Epstein and Weiss knew that Simmons had a dangerous weapon and it was their understanding that Simmons was merely to assault Leder with it, they would be responsible for the normal and necessary consequences of his act and it would not lie in their mouths to say that they had intended to have Leder assaulted and beaten with the weapon but that they did not intend to have him killed. That charge constituted a serious error of law”. (Emphasis added.)

What this sequence of legal propositions establishes is that, while the ultimate act of violence may be used by the trier of facts in making the inference of intent as to the defendant who actually struck the blow, that act is not determinative of the intent of the other conspirators. Thus, in the case before us, the question is not what Chester Ozarowski intended when he hit Selim Rabadi a crushing blow to the head, but rather whether Chester’s act was one intended by all of the others and one performed in furtherance of the conspiracy. While the nature of the blow is useful in imputing intent to do serious

sufficient if it tends to connect each defendant with the crime (People v Daniels, 37 NY2d 624 , 630, and cases cited therein; CPL 60.22, subd 1). By that standard, accomplice witnesses O’Neill, Fitzpatrick, and Artanis were more than amply corroborated, among other things, by the testimony of Arlette Travalini and Selim Rabadi.

We also note that one of the defendants, Benenati, raises one question different from those urged by his fellow defendants, i.e., renunciation. In doing so, he relies on the fact that, after arriving at the . shopping center, he wandered off with Fitzpatrick and Thomas Capasso in search of a candy store, although we note that he returned with them to their perch overlooking the garbage area of Nathan’s, which was the arena of the assault. Renunciation requires more than merely withdrawal from a conspiracy. It is an affirmative defense, and there must be a demonstration, inter alia, that a "substantial effort” was made to "prevent the commission” of the conspiratorial plan. (Penal Law, § 40.10, subd 1.) Since Benenati indisputably was present in the apartment where and when the conspiracy was formed, it appears difficult to question the finding that the defense has not been sustained.

Finally, the opinion of the trial court, fairly read, reveals that, while it utilized some details from postconspiratorial statements made by certain defendants to better present the issues arising from the checkerboard of facts here in perspective, in its legal analysis, it relied only on the relevant evidence in determining the guilt or innocence of each defendant.

Nor was the trial court’s sentencing of the defendants as youthful offenders violative of their constitutional rights. Although article 75 of the Penal Law, pursuant to which it acted, has been repealed since the sentencing (L 1974, ch 652, as amd by L 1974, ch 653, § 7), its repeal did not affect sentences already imposed. (L 1974, ch 653, § 10.) While the constitutionality of article 75 has been called into question by at least one court on equal protection grounds (United States ex rel. Sero v Preiser, 506 F2d 1115 , cert den 421 US 921 ; cf. People v Daniel J. S, 48 AD2d 665 ), that holding dealt exclusively with longer sentences mandated for youths than for adults on convictions of misdemeanors. The defendants here were punished far less severely than if they had been sentenced as adults for the same felonies of which they were found guilty. (CPL art 720.)

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

Order affirmed.