People v. Mateo (2 N.Y. 383, 2004)

OPINION OF THE COURT

Chief Judge Kaye.

Defendant’s case, here on direct appeal from a jury verdict of guilt of first degree murder and a jury sentence of death, has a complex history that we know well (see People v Mateo, 93 NY2d 327 [1999]; Matter of Relin v Connell, 92 NY2d 613 [1998]). Implicated in four murders and other violent crimes in Rochester, on December 19, 1996, defendant was charged in a 22-count indictment with, among other things, three counts of first degree murder. Count 10 of the indictment, contested in this appeal, alleged that on or about November 2, 1996, in the course of and in furtherance of first degree kidnapping, defendant intentionally caused the death of Juan Rodriguez-Matos, or, intending Matos’ death, commanded another—his wife, Monica Szlekovics—to kill him (Penal Law § 125.27 [1] [a] [vii]). In either circumstance, the cause of death was alleged to be a gunshot wound.

Counts 11 and 12 of the indictment charged defendant with first degree murder on a serial killer theory that he acted “in a similar fashion” when, within a 24-month period, he intentionally murdered four individuals, including Matos. On defendant’s motion, the trial judge dismissed those counts (175 Miscv 2d 192 [Monroe County Ct 1997, Connell, JJ), and the Appellate Division affirmed (249 AD2d 894 [4th Dept 1998]). We affirmed, concluding that the evidence presented to the grand jury was insufficient to establish that the killings at issue were “committed in a similar fashion” under Penal Law § 125.27 (1) (a) (xi) (People v Mateo, 93 NY2d 327 [1999]).

Prior to trial, relying on United States v Jackson (390 US 570 [1968]), defendant challenged the plea provisions of New York’s recently enacted death penalty statute (L 1995, ch 1). He argued that those provisions created a two-tiered system of punishment for the same offense, because only those who went to trial faced the death penalty while those who waived a jury trial and pleaded guilty did not. This scheme, he argued, impermissibly burdened his Fifth and Sixth Amendment trial rights. The trial judge, adhering to Jackson, held the plea provisions unconstitutional, but the Appellate Division subsequently declared them constitutional (Matter of Relin v Connell, 251 AD2d 1041 [4th Dept 1998]). Defendant thereafter went to trial, while an appeal of the Appellate Division ruling was pending in this Court. Ultimately, bound by Jackson, we reversed, struck the plea provisions as unconstitutional and, in a consolidated appeal, severed them from the statute (Matter of Hynes v Tomei; Matter of Relin v Connell, 92 NY2d 613 [1998]).

I.

The facts of defendant’s case, elicited at trial, are no less complicated than its legal history. The main participants in the events of October 8 through November 6, 1996 were defendant (then age 27), his wife (Monica, 20), his estranged girlfriend (Janette Sanchez, 25) and his brother (Victor Cordero, 16). Forty-nine witnesses, many of them civilians who had crossed paths with defendant, testified for the People. The defense called one witness, to testify regarding a bullet wound in defendant’s leg.

Though married to Monica, defendant had been living with Janette since November of 1995 in what was, to say the least, an abusive relationship. Janette told the jury that soon after she and her three young children moved in with defendant, he began terrorizing her: he hit her in the face, beat her in front of her children, threatened to stab her, and more than once aimed a gun at her and threatened to pull the trigger. At one point, he shot a round into the floor of their bedroom in front of her.

As Janette testified, on October 8, 1996, in a fit of rage over a busy telephone line, defendant hit her, and then began hitting her five-year-old daughter with a belt. Defendant locked them in the house, and left. Janette and her daughter escaped through a bedroom window. Janette then sought shelter at Alternatives for Battered Women, and remained there with her children. Three days later, on October 11th, defendant and Monica, in pursuit of Janette, showed up at 966 Avenue D, the home of Maria Sanchez (Janette’s sister), Jose Roman (Maria’s boyfriend) and Maria’s four-year-old daughter. Jose explained to the jury that he opened the door and defendant pointed a gun at his forehead. Defendant handcuffed him behind his back, put the gun to the back of his head and told him to lie down. For more than three hours, defendant and Monica held the family hostage while defendant ordered Maria to keep phoning Janette. Finally, Maria reached her and after defendant spoke to her, he and Monica left.

Throughout October, defendant persisted in his efforts to find Janette. He sent Monica to the shelter to give Janette his pager number so that she could call him. On October 16th, while Janette was at the Department of Social Services, defendant and Monica appeared, and defendant coaxed Janette into going to his apartment, without Monica. Soon after, Monica appeared at the door with a gun. She left, and defendant told Janette that he wanted to kill himself. Instead, he pointed the gun at Janette’s chest and said he would kill her because he could not allow her to be with anyone else. Janette later managed to return to the shelter. Two days later, defendant and Monica again accosted Janette on the street. When she ran to a nearby office, defendant followed her inside but security guards called the police. Between October 8th and October 24th, defendant kept calling and leaving messages for Janette at the shelter. On October 24th, fearful that defendant would harm Maria, Janette went back to defendant for six days. On October 29th, a social worker from Child Protective Services helped Janette and the children move to another shelter. No longer reachable at Alternatives for Battered Women, it seemed that Janette had disappeared.

As defendant later conceded to police, his attack on the child had ended his relationship with Janette. He admitted searching the city for her, and acknowledged that he would hurt anyone who got in his way. One unfortunate victim was Juan RodriguezMatos, age 20. On or about November 2, 1996, defendant was driving around the east side of Rochester with Monica and Victor, still looking for Janette. Defendant spotted Matos on the street, and remembered that he and Janette had a friend in common, Glyselle, who might have information about Janette. Defendant ordered Monica, who was driving, to circle the block so he could confront Matos. He then directed her to stop, got out of the car and approached Matos, demanding to know Glyselle’s address. When Matos refused to answer, defendant forced him into the car at gunpoint and they drove to defendant’s house. There, defendant handcuffed Matos, brought him into the bathroom and questioned him. Matos finally gave defendant an address, but by that time defendant had already decided to take him to the basement and execute him. Defendant told police that he made this decision and Monica and Victor were following his orders—Monica and Victor did what he told them to do.

Defendant admitted to the investigators that while in the basement, he put a dark handkerchief over Matos’ eyes, and then “shot the dude in the left side of his head as he stood there.” Matos fell on the floor, but was still alive, so defendant put a plastic bag over his head. He died some time later. In the middle of the night, defendant, Monica and Victor wrapped the body in a blanket and some curtains and left it in an alley near where defendant used to work. A subsequent autopsy of Matos’ body revealed that, although he aspirated gastric contents into his lungs, the cause of death was the gunshot wound to the head. Defendant later told police during questioning that he had handed the gun to Monica and that, in actuality, it was she who pulled the trigger and he was “surprised.” For the most part, he insisted that he had fired the fatal shot, but he alternated back and forth. In a third version, defendant claimed that even though Monica had pulled the trigger, he was a “king” and would take the blame because he wanted the death penalty and could not “do a hundred years in jail.” When police typed his written statement, defendant claimed to have pulled the trigger himself.

On November 6th, defendant, Monica and Victor carried out a second home invasion at 966 Avenue D. On that day, they went back to Maria and Jose’s apartment house, but hid in the basement. Defendant still wanted to find Janette, and told Monica and Victor that Janette had filed a police complaint against him. Defendant later explained, “[t]hat was a lie and I was using them to help me get my girl back.” After waiting about three hours, defendant said “let’s go upstairs.” Defendant told Monica to knock on the first floor apartment door (Maria lived on the second floor); when the occupant—Willie McWilliams—opened the door, defendant put a gun to his face.

McWilliams testified that defendant hit him on the left side of his head with the gun, and told him to “get on the floor.” A stranger to defendant and his objectives, McWilliams dropped to his knees and Victor handcuffed him. Asked who else was in the house, first McWilliams said “nobody,” but then said that his girlfriend and son were sleeping. Defendant checked the other room, grabbed a knife, came back, and said, “I never taken out a little kid before.” Victor said, “we got to take them all out.” McWilliams yelled out to his girlfriend to run. Defendant stepped on McWilliams’ back and cut him across the throat. When McWilliams reared up, defendant fell backwards, began shooting and struck him in the shoulder and back. One of McWilliams’ handcuffs came loose and he hit defendant in the face. Defendant fell again, dropping his gun, and apparently was shot in the leg during the fray. Defendant and Victor took off, leaving Monica behind. McWilliams held her down while his girlfriend, who escaped to a neighbor’s house, called 911. After the police arrested Monica at the scene, she provided information leading to the arrest of defendant and Victor. They were apprehended later that day in a car with defendant’s mother, another brother and a cousin.

Now, following a jury trial, defendant stands convicted of first degree murder and other charges. After a penalty proceeding in which he presented mitigating evidence, the jury sentenced defendant to death.

Defendant’s mandatory appeal, raising 22 issues, was noticed February 11, 1999, and comes to us directly from the trial court pursuant to our unique jurisdiction in death penalty cases (NY Const, art VI, § 3 [b]; CPL 450.70 [l]). Defendant argues that Matter of Hynes v Tomei (92 NY2d 613 [1998]) and People v Harris (98 NY2d 452 [2002]) require overturning his death sentence, because he went to trial under what we have held to be an unconstitutional two-tiered penalty scheme. We agree, and conclude that the death sentence must be set aside.

Defendant also contends that his right to due process was violated by the prosecutor, on the ground that inconsistent factual theories were presented at his and Monica’s separate trials. We disagree, and determine that the prosecutor’s actions did not breach defendant’s right to a fair trial. Defendant claims that the jury verdict of guilt of first degree felony murder is against the weight of the evidence. We disagree, and in our review of the facts conclude that the weight of the evidence comports with the jury determination that defendant kidnapped Matos, and in the course of and in furtherance of that crime, either intentionally shot and killed him or commanded his wife and cohort, Monica, to do so.

Finally, defendant maintains that certain evidentiary errors, including the admission of his statements about three other murders, mandate the reversal of his conviction. We disagree. Defendant’s trial strategy opened the door to the admission of his voluntary statements, to rebut the assertions that he gave false statements to police exaggerating his role in the Matos murder in order to exculpate his wife.

II.

Defendant contends that an Appellate Division declaration made prior to his trial—holding the plea provisions of New York’s death penalty statute constitutional—subjected him to an unconstitutional penalty scheme, and that our subsequent decisions in Matter of Hynes v Tomei and People v Harris mandate that we set aside his death sentence. In Hynes, we struck the plea provisions as unconstitutional and severed them from the statute, on the ground that they created a two-tiered punishment scheme that burdened the rights of defendants who went to trial (92 NY2d 613 [1998]). In Harris, we set aside the death sentence of a defendant who went to trial while the plea provisions were in effect (98 NY2d 452, 494-496 [2002]). We break no new ground by applying these precedents, and dispose of defendant’s Hynes claim first, striking defendant’s sentence of death.

The People and the Attorney General maintain that in this case, the trial court’s order declaring the plea provisions unconstitutional controlled the course of the litigation, and that defendant actually went to trial under a lawful statute. The question before us is whether a subsequent declaration by the Appellate Division, Fourth Department, that the plea provisions were constitutional (251 AD2d 1041 [1998]), rendered those provisions operative in his case. The People and the Attorney General concede that if the plea provisions were in effect during defendant’s case, the death sentence must be vacated.

A brief procedural history is required to frame the issue. Defendant was indicted on first degree murder and other charges on December 19, 1996, and the prosecution filed its notice of intent to seek the death penalty pursuant to CPL 250.40 (2) on January 17, 1997. On April 24, 1997, defendant moved to strike the death notice and the plea provisions of New York’s death penalty statute as unconstitutional, relying on United States v Jackson (390 US 570 [1968]). In Jackson, the United States Supreme Court invalidated the death penalty provision of the Federal Kidnaping Act (18 USC § 1201 [a]) because, in relevant part, by encouraging jury waivers to avoid the death penalty, the provision impermissibly burdened defendants’ Fifth and Sixth Amendment rights. Relying on Jackson, the trial court, on August 25, 1997, granted defendant’s motion to the extent that it declared the plea provisions unconstitutional (175 Misc 2d 192 [1997]).

The People then commenced a CPLR article 78 petition in the Appellate Division seeking a writ of prohibition to bar both the trial judge and defendant from enforcing the order declaring the plea provisions unconstitutional. On June 10, 1998, the Fourth Department converted the article 78 proceeding to a declaratory judgment action and held the plea provisions constitutional (251 AD2d 1041 [1998]). Jury selection commenced on September 1, 1998 and the jury was sworn on November 9, 1998. On December 3, 1998, the jury found defendant guilty of first degree murder and other charges, and on December 16,1998, sentenced him to death.

Six days later, on December 22, 1998, this Court reversed the order of the Fourth Department, as well as a comparable order of the Second Department, and struck the plea provisions as unconstitutional under authority of Jackson (92 NY2d 613 [1998]). Shortly thereafter, defendant moved to set aside his death sentence, relying on Hynes. On January 15, 1999, the trial judge summarily denied the motion and ordered the death sentence to be carried out based on the jury’s determination. Defendant now contends that the Fourth Department ruling upholding the plea provisions was in effect in his case when he went to trial and therefore the trial was conducted under a Joc/eson.-violative statute. We agree.

To be sure, defendant received a favorable pretrial ruling from the trial court striking the plea provisions from the statute. By the time that defendant’s trial commenced, however, the Appellate Division had declared the plea provisions constitutional, in an action by this District Attorney against this trial judge and this defendant. That ruling was binding in the Fourth Department (see e.g. Duffy v Horton Mem. Hosp., 66 NY2d 473, 475 [1985]). Based on that binding precedent, we conclude that defendant could have sought to avoid exposure to a death sentence only by waiving his right to a jury trial and pleading guilty.

Matter of Morgenthau v Erlbaum (59 NY2d 143 [1983]) does not mandate a different result in this case. We held in Erlbaum that “a declaratory judgment attacking a criminal court’s interlocutory ruling may be granted when the controversy is over the validity of a statute, . . . and there is no immediate attempt to prevent the criminal court from proceeding on the course which it has charted by its ruling” {id. at 151-152). Erlbaum, moreover, contemplates that an individual defendant will not be a party to the declaratory judgment action. (Here, defendant was a party.) The Appellate Division order—determining the validity of the statute—did not reverse the trial court’s order, or immediately prevent the trial court from proceeding on its course. At the time the Appellate Division ruled, the case was several months from being tried. There was no ensuing delay of trial. Indeed, defendant went to trial while the Appellate Division ruling, reinstating the plea provisions, was simultaneously challenged in this Court. Thus, the “concern over obstructing the speedy resolution of cases” (id. at 152) did not arise. In these circumstances, Erlbaum's policy considerations—protecting criminal trials from interference, or even undoing, by interlocutory appeals—were not implicated.

Exactly the situation Jackson held untenable, however, occurred here. Like any other capital defendant in the Fourth Department, had defendant sought to waive his right to a jury trial and plead guilty—with the appellate court’s ruling in hand—it was highly improbable that the trial judge would have ignored the order of the Appellate Division. Thus, the fortuitous timing of defendant’s trial, sandwiched in between the Appellate Division ruling and this Court’s decision striking the plea provisions, contributed to a unique situation in which defendant’s Fifth and Sixth Amendment trial rights were burdened and he was tried under an unconstitutional two-tiered penalty scheme. The sentence of death therefore must be set aside. We turn next to defendant’s challenges to the verdict of guilt.

III.

Defendant contends that the prosecutor violated due process by positing, in his trial, a theory of first degree murder factually inconsistent from that argued at Monica’s trial. He also maintains that the trial court erroneously instructed the jury that it could find defendant guilty of first degree murder whether he shot Matos or commanded the killing, and that the jury verdict on that count is against the weight of the evidence.

A. The Prosecution’s Theories

Monica was prosecuted separately—about a year before defendant’s trial—on the theory that she was guilty, as the shooter, of intentional first degree felony murder (Penal Law § 125.27 [1] [a] [vii]) in the course of and in furtherance of first degree kidnapping, in a noncapital trial. The jury acquitted her of that count but convicted her of second degree felony murder and first degree kidnapping. At his trial, defendant sought to preclude the prosecution from arguing in his case that he was the shooter, on the ground that the People previously dismissed that theory in Monica’s case.

The trial court rejected defendant’s claim, determining that at defendant’s trial, the People were free to argue alternatively that either defendant or Monica—commanded by defendant— pulled the trigger. The court concluded that “the People are merely intending to argue reasonable views of the evidence that could be drawn from the testimony and physical evidence” (177 Misc 2d 817, 818 [Monroe County Ct 1998, Connell, J.]).

Defendant claims that by advancing purportedly inconsistent theories, the People corrupted the truth-finding function of the trial. It is settled that a prosecutor may not knowingly present admissible but false information to a jury (People v Pelchat, 62 NY2d 97, 105 [1984]). Of course, in the circumstances of this case, where defendant and Monica implicated not only themselves but also each other, the People could not know who the shooter was—only defendant and Monica knew.

Defendant contends that at the separate trials, the prosecution presented diametrically opposed versions of his role in the shooting. To be sure, at Monica’s trial for first degree felony murder, the prosecutor argued that Monica shot Matos. But at defendant’s trial, the prosecutor presented that very same proposition, again arguing that Monica intentionally shot him, albeit under defendant’s orders. Defendant was not “resculpted” from a mere sideliner to a main participant (cf. United States v Salerno, 937 F2d 797, 812 [2d Cir 1991], revd on other grounds 505 US 317 [1992]). In both trials, defendant was portrayed as the “driving force” behind the crime. Additionally, the People maintained that, based on defendant’s own written statement, it was also reasonable to conclude that he was the one who pulled the trigger. Thus, defendant’s jury considered the same argument that the prosecutor presented at Monica’s trial, and also considered a theory supported by defendant’s own words.

In assessing this claim, we find Nguyen v Lindsey (232 F3d 1236 [9th Cir 2000]) persuasive. There, an innocent bystander was killed in the crossfire of a shootout between two rival gangs; two combatants were charged with murder and separately tried. At the trial of defendant Phung, the prosecutor presented evidence that Phung shot first. At the trial of defendant Nguyen, the prosecutor introduced Nguyen’s own statement to police that a cohort in his car, Cholo, had fired first. The Ninth Circuit held that the prosecutor did not pursue fundamentally inconsistent theories in violation of due process, even though different evidence was presented at each trial (id. at 1241). Although the prosecutor made divergent arguments at each trial as to who fired the first shot, the court concluded that these arguments were consistent with the evidence actually adduced at each trial (id. at 1240).

Here, as in Nguyen, the evidence against Monica at her trial was her own statement that she killed Matos after defendant gave her the gun and whispered in her ear to shoot him in the head. The evidence at defendant’s trial was his self-incriminating admissions that he intended to execute the victim, and either shot the victim or commanded Monica to do so.

Nguyen also distinguished Thompson v Calderon (120 F3d 1045 [9th Cir 1997] [en banc] [plurality op], revd on other grounds 523 US 538 [1998]), relied on by defendant. In Thompson, separate trials were conducted of two suspects in the rape and murder of Ginger Fleischli. Testimony by jailhouse informants at a preliminary hearing revealed that defendant Leitch wanted Fleischli dead because she was interfering with his attempts to reconcile with his ex-wife (120 F3d at 1055). On the night of the murder, defendant Thompson allegedly had consensual sex with Fleischli. Afterward, Leitch arrived and he and Thompson killed her.

At Thompson’s trial, the prosecution presented other witnesses who testified that Thompson had confessed to raping and killing Fleischli before Leitch got home, and that he killed her to prevent her from reporting the rape (id. at 1056). Thompson was convicted of first degree murder and sentenced to death. Then, at Leitch’s trial, the prosecutor called mostly defense witnesses from Thompson’s trial, who testified about Leitch’s motive for killing Fleischli, his threats against her and his violent disposition. A plurality of the court concluded that in Leitch’s trial, the prosecutor returned to his original theory and discredited the very evidence he had previously offered in Thompson’s trial, so that Thompson, rather than Leitch, suffered from the due process deprivation (id. at 1059). In Nguyen, by contrast, the court found it compelling that both defendants could be found guilty of the same crime because of its nature (232 F3d at 1240).

The circumstances of defendant’s case are closer to Nguyen than Thompson. The prosecutor never discredited the central evidence he previously offered to convict Monica, but instead used that evidence to prove that defendant commanded her to shoot Matos. Thus, as the People sought to prove, both defendants could have been guilty of first degree murder. The argument that defendant was the shooter was also properly adduced at trial, based on his admissions. In these circumstances, the People should not have to choose one defendant over the other to prosecute as the shooter.

Defendant also argues that at Monica’s trial, she was portrayed by the People as acting with free will, whereas at defendant’s trial, the evidence showed that she was abused and acted at defendant’s command. These positions are not inherently inconsistent. At Monica’s trial, the People were countering her duress defense, and sought to show that she was capable of freely committing the murder. The prosecution acknowledged that Monica was abused, but argued that the abuse did not mean she could establish duress: “What was the abuse? What did it consist of? . . . [W]hat effect does it have on this case? . . . [Yjou’re going to hear that Angel Mateo was a bad man, and I anticipate you are going to hear that he was the driving force here, but I also anticipate you are going to hear that Monica Szlekovics was involved.” At defendant’s trial, by contrast, duress was not in the case. The People were entitled to show that, fearful or not, Monica could have willingly followed defendant’s command.

B. The Command or Actual Killer Instruction

Defendant claims that it was error for the trial court to instruct the jury that it could convict defendant of first degree murder either as a commander or shooter. Penal Law § 125.27 (1) (a) (vii), the “felony murder” provision of the first degree murder statute (see People v Harris, 98 NY2d 452, 475-477 [2002]), states that a person is guilty of first degree murder when, with intent to cause the death of another person, he causes the death of that person or a third person, and:

“the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of . . . kidnapping in the first degree . . . ; provided however, the victim is not a participant . . . and, provided further that, unless the defendant’s criminal liability under this sub-paragraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant’s criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter.”

In turn, Penal Law § 20.00, the accessorial liability provision, provides that “[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.”

Based upon the plain language, it is clear that the Legislature has set forth a single circumstance by which to impose accessorial liability for first degree felony murder. An actor may be found guilty as an accessory under Penal Law § 125.27 (1) (a) (vii) only when the theory proved by the prosecution is that the defendant commanded the killing (see People v Couser, 94 NY2d 631, 635 [2000] [“(a) defendant’s criminal responsibility for murder in the first degree can be based upon the conduct of another when that defendant ‘commanded another person to cause the death of the victim or intended victim’ ” (emphasis in original)]).

By comparison, the Legislature chose not to limit accessorial liability for the other 12 subparagraphs of the first degree murder statute (see generally People v Cahill, 2 NY3d 14 [2003] for a discussion of 13 aggravating factors of first degree murder statute). It is only the felony murder aggravator that is so limited. Indeed, the Assembly Codes Committee memorandum explains that the felony murder provision “excludes defendants whose criminal liability under this subparagraph is based upon the conduct of another person, unless the defendant commanded another person to cause the death of the victim or intended victim” (Mem of Assembly Codes Comm, Bill Jacket, L 1995, ch 1, at 22 [emphasis added]).

The legislative history supports the conclusion that, while the Legislature limited accessorial liability for first degree felony murder to “commanding],” it did nothing to upset the settled principle that “[t]here is no distinction between liability as a principal and criminal culpability as an accessory” (People v Duncan, 46 NY2d 74, 79-80 [1978]). When it enacted the statute, the Legislature was surely aware of our decisions interpreting the accessorial liability statute (see generally People v Robinson, 95 NY2d 179, 183-184 [2000]). If the Legislature had wanted to set forth “command” as a separate element of the first degree felony murder offense, moreover, it would have done so.

The question here is whether due process requires that the command theory be considered by the jury apart from the actual killer theory, and that the jury be unanimous on one theory or the other, even though the Legislature expressly intended that the two coexist in the same subparagraph of the statute. We conclude it does not.

The trial court’s instructions comported with due process. In Schad v Arizona (501 US 624 [1991]), the United States Supreme Court analyzed an Arizona statute that defined first degree murder as, among other things, premeditated murder or murder committed during a felony. Justice Souter, writing for a plurality, observed that there is a “point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses” (501 US at 633).

The Schad plurality adopted a case-by-case approach of analyzing the problem, while deferring to the states: “ [i]f a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law” (id. at 636). The plurality observed that “[w]here a State’s particular way of defining a crime has a long history, or is in widespread use, it is unlikely that a defendant will be able to demonstrate that the State has . . . defined as a single crime multiple offenses that are inherently separate” (id. at 640).

Although New York’s current first degree murder statute is recently enacted, the term “command,” under our law, has its roots in the 1907 Penal Code, which defined a “principal” as “[a] person concerned in the commission of a crime whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime” (People v Farmer, 196 NY 65, 76 [1909] [Bartlett, J., dissenting, quoting Penal Code of 1907 § 29] [emphasis added]; see also Couser, 94 NY2d at 637). Almost 100 years ago, then, a commander was not only just as culpable as a person who directly committed an offense, but also was indeed a principal.

In a related vein, Schad is instructive in its observation that if two possibilities for proving an element exist, an appropriate inquiry is whether a moral equivalence between the two could reasonably be found (501 US at 644). If so, it is enough to rule out the argument that any hypothetical “moral disparity bars treating them as alternative means to satisfy” the element of a single offense (id.). We have a long history of treating actual killers and commanders as moral equivalents (see Farmer, 196 NY at 70-71).

Defendant nevertheless contends that he could have been guilty of only one of the two theories—shooting or commanding—and therefore a different result should obtain. Indeed, he argues that the prosecutor must prove to the jury’s satisfaction precisely what occurred as a matter of historical fact. This is so, he claims, for any issue that is critical to the main dispute in the case.

As we sift carefully through the evidence, it becomes apparent that defendant makes much of what is essentially a preliminary fact. “Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict” (Schad, 501 US at 632, quoting McKoy v North Carolina, 494 US 433, 449 [1990] [Blackmun, J., concurring]). Defendant certainly kidnapped the victim—that is undisputed. He took on the mental state required: it was his decision to execute Matos. Thus, whether he personally pointed the gun at the victim’s head and pulled the trigger, or whether, handing the gun to Monica, he gave her an order and stood near as she carried it out, the two choices for the jury were not so different that they amounted to any more than alternatives to a common end. Indeed, Justice Souter wrote that in analogous circumstances, “[w]e have never suggested that in returning general verdicts . . . the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone” (501 US at 631).

We have, more recently, had occasion to employ this principle in similar circumstances. For example, in People v Rivera (84 NY2d 766 [1995]), the defendant was indicted for second degree murder as a principal. Concluding there was no bar to the People’s assertion at trial that defendant acted as an accomplice, we held that the elements of the crime were the same, whether the defendant acted in either role (id. at 771). The facts showed that the victim was shot once and died from the wound. Witnesses saw defendant and two cohorts, all of whom had guns drawn, near the victim. The victim looked at defendant and said, “[y]ou shot me” before falling down (id. at 768). Thus, the People were entitled to prove that defendant intended the victim’s death, and caused the death either by shooting his gun or by aiding the shooter. To convict, the People had to prove each element of the crime, and defendant’s liability was the same whether he acted as either a principal or an accessory (id. at 770-771).

Similarly, in People v Russell (91 NY2d 280, 288-290 [1998]), we concluded that the prosecution was not required to prove which of the defendants fired the lone bullet that killed the victim, when the evidence established that each defendant, embroiled in a gun battle with the others, intentionally aided one another in a mutual combat that caused the death of an innocent bystander. Here, too, the prosecution need not have shown which of the two perpetrators actually fired the fatal shot.

C. The Weight of the Evidence of First Degree Felony Murder

Defendant claims that his conviction for first degree felony murder based on either the shooter or the commander theory was against the weight of the evidence because the evidence proved, at most, that he was an ordinary accomplice and was guilty of second degree intentional murder (see Penal Law § 125.25 [1]; § 20.00).

The standard of appellate review of the legal sufficiency of the evidence in a criminal trial, of course, is “whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” (Cahill, 2 NY3d at 57, quoting People v Bleakley, 69 NY2d 490, 495 [1987]). Viewing the evidence in a light most favorable to the People, as we must (People v Cabey, 85 NY2d 417, 420 [1995]), we conclude that there is certainly a valid line of reasoning by which a rational person could have reached the conclusion of the jury and that defendant’s guilt was established beyond a reasonable doubt.

In this capital case, in which a death sentence has been imposed, moreover, we are constitutionally required to review the facts (NY Const, art VI, §§ 3, 5; People v Davis, 43 NY2d 17, 36 [1977]). Our inquiry here is distinct from our traditional appellate review for legal sufficiency.

We recently reiterated that “weight of the evidence review recognizes that ‘[e]ven if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further’ ” (Cahill, 2 NY3d at 57, quoting Bleakley, 69 NY2d at 495). Thus, “[i]f based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony.’ If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict” (69 NY2d at 495 [internal citations omitted], quoting People ex rel. MacCraeken v Miller, 291 NY 55, 62 [1943]; Cahill, 2 NY3d at 58). Of course, “[g]reat deference is accorded to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (69 NY2d at 495). When “an appellate court performs weight of the evidence review, it sits, in effect, as a ‘thirteenth juror’ ” (Cahill, 2 NY3d at 58, quoting Tibbs v Florida, 457 US 31, 42 [1982]). We must be sure that “the evidence is of such weight and credibility as to convince us that the jury was justified in finding the defendant guilty beyond a reasonable doubt” (Ca-hill, 2 NY3d at 58, quoting People v Crum, 272 NY 348, 350 [1936]).

With these standards in mind, we conclude that the evidence amply supports the first degree murder conviction. There is no question that defendant engineered and carried out the armed kidnapping of Matos, that defendant decided to kill him, handcuffed him, led him down to the basement, and that Matos died of an intentional gunshot wound to the head. No matter which version of defendant’s story the jury credited, it was justified in finding that defendant was squarely in charge of the kidnapping and shooting of Matos.

(i.) The Command Theory

Despite defendant’s argument that there was no direct evidence that he told Monica to kill Matos, the circumstantial evidence strongly supports the conclusion that he did. On the day of Matos’ murder, defendant was again looking for Janette, with Monica and Victor under his sway. Defendant ordered Monica to turn the car around to confront Matos, he directed her to stop the car and he forced Matos into the car at gunpoint. It was defendant who took Matos into the bathroom and handcuffed him. By then, defendant had made a decision to take “the kid” down to the basement to execute him. Defendant told police that he made this decision and Monica and Victor were following his orders.

Defendant told Sheridan, “I had already made up my mind that I was going to kill him.” Defendant stated that he gave Monica the gun, and stood not far from her as she pulled the trigger. Observing that Matos was still alive, defendant placed a plastic bag over his head, further demonstrating his intent. The only reasonable inference from these facts is that by word or deed, when he handed Monica the gun, he authoritatively directed her to pull the trigger (see Couser, 94 NY2d at 637).

After the shooting, defendant remained in charge. He explained to Sheridan that he set the alarm for 2:30 a.m. so that, after “partying,” they could get up and get rid of the body. He ordered Monica and Victor to go downstairs and wrap the body, he told Victor to help them lift the body into the car, he made Victor sit in the back of the car with the corpse (because there was no room in the front seat) and he instructed Monica to drive to an alley near his old job to dispose of the body. When confronted by police with the theory that Monica was the shooter, defendant claimed surprise that Monica shot Matos in the head. Sheridan later explained that defendant never said he was surprised that Matos was killed. It was reasonable to infer that defendant was surprised that Monica, whom he scorned, carried out the order. He acknowledged in his written statement that everything she did was “out of fear of me and what I would do.”

Throughout, defendant maintained his power over the other participants. The jury could easily have inferred that he gave an order to Monica to shoot Matos. The jury gave the evidence its proper weight and we will not disturb that determination. (ii.) The Shooter Theory

Defendant’s written statement to police provided the jury with solid evidence to conclude that he pulled the trigger:

“I handcuffed him behind his back and put him into the bathroom. Me and Monica were trying to figure out what we were going to do with him. I walked him down into the basement. I had already made up. my mind that I was going to kill him. In the basement I put a dark handkerchief over his eyes. I shot the dude in the left side of his head as he stood there. The dude fell on the floor. The dude wasn’t dead so I put a plastic garbage bag over his head. He was alive for about 2V2 hours. The dude just laid there on the floor making sucking noises. After awhile I checked on him and saw that he was dead.”

This was a forceful admission leading to the conclusion that defendant shot Matos. True, defendant appeared confused when police asked him about the blindfold over Matos’ eyes. Defendant said there was “nothing over the kid’s eyes.” Of course, defendant admitted covering Matos’ head with a plastic bag after the shooting, and never retracted that portion of his statement, so he must have seen the blindfold, which was shot through and bloodied. The jury may have inferred that he had forgotten about it by the time police asked about it.

We conclude the jury was justified in finding beyond a reasonable doubt that defendant, having decided to execute the victim, directed Monica to shoot Matos or shot the victim himself, and in rejecting his claim that he was merely guilty of second degree murder as an accomplice.

IV

Defendant maintains that his confession was involuntary and that the introduction, during re-cross-examination of a prosecution witness, of part of it—statements about three other murders—was reversible error. We hold that the confession was voluntary and that, through his trial strategy, defendant opened the door to admission of his statements on other homicides.

A. The Voluntariness of the Confession

Defendant was arrested on the afternoon of November 6, 1996 based on leads Monica gave to police. He contends that his will was overborne by the investigators who questioned him, because they allegedly led him to believe that he was receiving a compelling benefit—lenient treatment for family members—in exchange for his confession. This claim is without merit.

Following a Huntley hearing, the court determined that:

“[Defendant was properly advised of his Miranda warnings and made a knowing, voluntary and intelligent waiver of those warnings before speaking with the officers. During the ensuing hours of interviews, the defendant made numerous inculpatory, spontaneous, oral and written statements to the police concerning the events under investigation. There is no evidence that the police in any way coerced statements made by the defendant, nor induced them by any threats or promises, implied or otherwise, concerning either the charges in this case against the defendant or charges, real or imagined, against his family. The People met their burden in establishing the voluntariness of the statements of the defendant.”

An extrajudicial confession is inadmissible against an accused if it is involuntarily made (CPL 60.45 [1]; People v Anderson, 42 NY2d 35, 37 [1977]). A confession is “involuntarily made” when it is obtained by a public servant engaged in law enforcement activity by means of any promise or statement of fact which creates a substantial risk that the defendant might falsely incriminate himself (CPL 60.45 [2] [b] [i]).

To determine voluntariness, courts review all of the surrounding circumstances to see whether the defendant’s will has been overborne (Anderson, 42 NY2d at 38; Arizona v Fulminante, 499 US 279, 285-286 [1991]). Of course, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment” (Colorado v Connelly, 479 US 157, 167 [1986]). In our analysis, the hearing court’s factual determinations, resting largely upon its assessment of the credibility of the testifying officers, are entitled to deference (see People v Prochilo, 41 NY2d 759, 761 [1977]). In a capital case, moreover, our obligation to weigh the evidence and determine whether the jury was justified in its conclusion beyond a reasonable doubt “extends to the hearing court’s finding as to the voluntariness of the confessions” (People v Carbonaro, 21 NY2d 271, 274 [1967]). These findings must be reviewed “by the same standards applicable to a verdict of guilt” (id., quoting People v Leonti, 18 NY2d 384, 389 [1966]).

Defendant concedes that the hearing court made “no findings adverse” to him. Under our independent factual review power, we find ample evidentiary support for the hearing court’s factual findings. A review of the circumstances here, moreover, shows that defendant’s confession was voluntary, and that coercive police activity did not occur.

Defendant was placed in an interview room just after 5:00 p.m. and immediately began asking to speak to the District Attorney, saying he only wanted to “deal with the head man.” He told another investigator, who was passing by in the hall, to send in the person handling his case while he still felt like talking. As soon as the homicide investigators entered the interview room at about 5:45 p.m. and introduced themselves, defendant announced that he had matters he wanted to clear up. Investigator Sheridan told defendant that first, he had to read him his rights. Defendant insisted he would tell them everything they wanted to know, but he wanted his family released. Investigator Sheridan gave defendant his Miranda warnings and defendant waived his rights.

Defendant immediately began talking. Before the investigator could put the Miranda card away, defendant stated that he would tell Investigator Sheridan what he wanted to hear, but repeated his demands. Sheridan explained, “I have to know what it is that you want to tell me” and defendant responded, “I will tell you about the homicides.” When Sheridan asked for more information, defendant said, “I can tell you about Johvanny.” Sheridan asked whether defendant killed Johvanny (Diaz), and defendant admitted that he did, and again repeated that he wanted his family released. Defendant then admitted to killing “a black guy near a milk plant” (Peter Holley) and to killing Matos.

Sheridan then told defendant that he would check on the status of his family members, but he at no time promised defendant that they would receive lenient treatment if defendant confessed. Indeed, defendant confessed to the murders without any prompting from the investigator other than requests for more information. As is obvious from the exchanges, defendant believed that he was in a position to influence the release of his family, acting under a self-created impulse to tell the police “everything” in order to achieve his own objective (see generally People v Gonzales, 75 NY2d 938, 940 [1990]).

Now, defendant claims that police led him to believe that they would limit the charges against his young brother, Victor, in exchange for his confession. By the point at which Victor’s charges were discussed, however, defendant had already confessed to the four murders and to sole possession of the gun. The investigators did not promise that they would fulfill his desire; to the contrary, they informed defendant that his brother would not be released. Nor, despite defendant’s claims, was there a true quid pro quo involving the dropping of gun charges against defendant’s mother and other relatives. Once defendant acknowledged that the gun was his, police released those relatives and informed defendant that they had been set free. This information did not render involuntary defendant’s subsequent elaboration about the murders.

Defendant also maintains that the investigators should have been required to tell him that his family’s fate was unrelated to whether he confessed, claiming they actively exploited his apprehension about his relatives. Yet the investigators were not required to dissuade defendant from making incriminating statements, or disabuse him of his fantasy that he could control the circumstances of the interrogation and win the release of his family. We find the reasoning of the Appellate Division in People v Johnson persuasive: “[i]t is not an improper tactic for police to capitalize on a defendant’s sense of shame or reluctance to involve his family in a pending investigation absent circumstances which create a substantial risk that a defendant might falsely incriminate himself’ (177 AD2d 791, 792 [3d Dept 1991] [internal citation omitted]).

A comparison with the circumstances underlying our decision in Anderson (42 NY2d 35 [1977]) is instructive. In Anderson, defendant was held for more than 19 hours without probable cause. He was deprived of food and sleep for over 30 hours, questioned by eight or nine officers operating in teams, isolated from friends and family during the entire period, and was not told of his right to counsel until the interrogation had been underway for more than 13 hours (42 NY2d at 39-41). By contrast, in this case, police had ample cause to arrest defendant for the attack on McWilliams. Once in custody, defendant was given his Miranda warnings and waived them. Police offered defendant a cheeseburger, candy, water, coffee and cigarettes, as well as medical treatment. He insisted that he wanted to clear up the crimes, not go to a hospital. Defendant was questioned by two investigators. He was allowed two meetings with Victor and a meeting with Monica. He also was permitted a phone call to his mother, to verify that she had returned home. On this record, there is no evidence that defendant’s will was overborne or his capacity for self-determination impaired, and every indication that he spontaneously, aggressively and voluntarily confessed to suit his own purposes. B. The Admission of the Statements about Other Homicides

Defendant claims on appeal that he was deprived of a fair trial through the admission, following re-cross-examination of Sheridan, of his statements regarding other homicides. In their direct case, the People initially introduced defendant’s statements pertaining only to the Matos killing and the Avenue D incidents. The trial court ultimately permitted the People to introduce defendant’s entire confession, including the statements about other homicides, to rebut the claim that defendant falsely confessed in an unreliable interrogation to killing Matos to cover for his wife. The trial court explained that the jury needed to hear the entire confession to discern “the truthfulness of the [Matos] statement and the motivation for the defendant to give the various versions” of it. In our view, defendant, in the particular circumstances of this case, opened the door to this evidence.

(i.) Pretrial Motion Practice

On July 31, 1998, more than three months before trial, the prosecution informed defense counsel by letter that it did not intend to offer testimony in its direct case regarding other murders “unless the door is opened through argument, cross-examination or presentation of evidence by the defendant.” The People warned that if defendant raised voluntariness claims “which in any way relate to what took place during the times the defendant was making statements regarding the Diaz, Toro or Holl[e]y murders,” they would seek to present rebuttal evidence concerning the interrogation as a whole.

In an August 10, 1998 letter in reply, defense counsel acknowledged:

“We recognize that redaction of evidence of the prior homicides necessarily creates gaps in the time-line of the interrogation. . . . Please be assured that we will not exploit these gaps by arguing to the jury that these gaps reflect the time when impermissible pressure was brought to bear upon [defendant].”

On August 31, 1998, defendant moved for a pretrial order redacting from his confession any reference to the other homicides. The People responded that for the first hour and three quarters of the interrogation, defendant spoke about four murders intertwined with his repeated request that police release his family. The People offered to structure their direct examination to eliminate all conversations regarding “the four bodies and the defendant’s demands to have his family released.” The prosecution again warned defendant against opening the door to his admissions through, for example, questions about time gaps in the confession or alleged promises made by police about his family’s release. The prosecution maintained that it would be unfair to require the investigators to answer questions about any alleged promises without being able to explain to the jury “the entire substance of that conversation.”

After extensive oral argument, the court told defense counsel that many issues in the case could open the door to the full confession. To avoid that outcome, the trial court offered defense counsel the opportunity to submit a “wish list” of suggested redactions from the confession. The court additionally invited defense counsel to submit proposed questions for cross-examination, so that the court could, in advance, point out areas that might be in the danger zone. Plainly attentive to the potential for prejudice to defendant, the court stressed that the other statements could be relevant to issues in the case, requiring examination of the “prejudicial or probative value of the statements themselves.”

Despite the trial judge’s suggestion, defendant chose not to provide a list of proposed redactions. Thus, without benefit of a proposal from defense counsel, the court issued its pretrial order:

“The People . . . point out that during the time period that Inv. Sheridan and Sgt. Gropp spoke to the defendant, there was intertwined conversation regarding other issues dealing with the release of his family. . . . The prosecution, however, is concerned that the period of time taken up regarding the conversations on the Diaz, Toro and Holley murders may be raised by the defense on the issue of voluntariness on the Matos-Rodri[g]uez murder, which is the subject of this trial. The People wish to reserve the right to question the investigators on re-direct examination should the defense ‘open the door’ to an enlarged area of questioning.

“The Court is sensitive to the People’s request but feels there is no way to make a definitive order in advance of the trial on the People’s request. Therefore, it is the direction of the Court that the People should structure their direct examination regarding the conversations between the defendant and the police from 5:45 p.m. to 7:30 p.m. on November 7, 1996 [sic] in a way in which all conversations regarding references to ‘4 bodies’ and the defendant’s demand to have his family released are eliminated. The Court will allow leeway to the prosecution by way of leading questions on these issues. The Court will preserve the People’s right to challenge the defense cross-examination and to raise the issue as to whether the defendant has raised any issue as to the voluntariness of the statement relating to what took place during the times the defendant was making statements regarding the Diaz, Toro, and Holley murders.”

(ii.) The Defense Strategy

Despite knowledge that the People were prohibited from eliciting the chronology of the confession or defendant’s demands to have his family released, and despite the trial court’s repeated warning that the preclusion order would be revisited based on what ensued at trial, the defense opened with its own theory explaining the Matos statement: that defendant was motivated to confess in an “obvious and elaborate ritual to cover for his wife.” In the opening, defense counsel told the jury that defendant’s statement “was nothing less than Mr. Mateo taking everything his wife did onto his shoulders.” Disregarding his own earlier assurance that he would not exploit the time gaps, counsel also urged the jurors to “pay close attention to the circumstances and chronology of the statements.”

Through the cross-examination of police witnesses, defendant’s strategy emerged. Questions about the extent of his leg injury, the timing of events in the interrogation and his concern for his family (which the People had been barred from explaining) began painting a picture that defendant, in significant pain throughout a very protracted nighttime interrogation, confessed to Matos’ murder in an unreliable manner. By contrast Sheridan, the People’s main witness on the Matos murder, testified in the truncated fashion directed by the pretrial order.

Sheridan testified that defendant first admitted to shooting Matos himself, then changed his story and claimed Monica did it, then went back and forth several times, and even claimed that Monica did it, but he would take the blame because he was a “king” and wanted the death penalty. After these various oral admissions, defendant again asserted in his written statement that he pulled the trigger. By contrast, he never wavered from his assertions that he decided to execute Matos and that Monica was following his orders.

Sheridan also explained that after he completed taking the Matos statements, his partner Sergeant Gropp took defendant’s written statements about Avenue D. When the People finished their direct examination of Sheridan, the defense sought rulings from the trial court about eight areas of cross-examination of the investigator concerning: 1) the time gaps in the interrogation, 2) alleged promises that defendant’s family would be released, 3) alleged promises that police would reduce Victor’s charges, 4) alleged promises about Monica’s charges, 5) defendant’s concern for his family’s safety, 6) the substance of what defendant learned about Monica’s statements, 7) the substance of defendant’s taped telephone call to his mother (in which he said he “took four bodies”), and 8) defendant’s physical condition during the interrogation.

The trial court advised defense counsel that, in light of this plan of attack:

“I think that the redactions that have been agreed to up to this point by the People on the direct would not continue through the cross-examination. If I’m going to be telling the jury that in evaluating the testimony of Investigator Sheridan concerning the statement attributed to the defendant, one of the things I’d be telling them is they should be looking at the totality of the circumstances, everything that happened. And in this case, . . . the picture is a picture of a defendant who is attempting to take control of the interview process and asserting very vigorously conditions that he requires as conditions precedent to his talking to the officers from t