
    [676 NYS2d 908]
    The People of the State of New York, Plaintiff, v Angel Mateo, Defendant.
    County Court, Monroe County,
    July 29, 1998
    APPEARANCES OF COUNSEL
    
      Kevin M. Doyle, Capital Defender (William T. Easton and Joseph T. Flood of counsel), for defendant. Howard R. Relin, District Attorney of Monroe County (Michael Green and Wendy Evans Lehmann of counsel), for plaintiff.
   OPINION OF THE COURT

John J. Connell, J.

This is an application by the defendant for an order precluding the prosecution from arguing or in any other manner asserting or suggesting that the defendant caused the death of Juan Rodriquez-Matos by shooting him with a gun. The basis of their application is grounded in what took place in the trial of Monica Szlekovics, the defendant’s wife. At that murder trial, the People argued to the jury that the defendant Szlekovics actually fired the fatal shot that killed Mr. Rodriquez-Matos. The Szlekovics statements introduced by the District Attorney at that trial contradicted each other as to whether she or Mr. Mateo actually killed the victim.

The People oppose the defendant’s application, pointing out that from the very earliest stages of both the Szlekovics and Mateo cases, they have taken the position that they are not able to say with certainty which defendant pulled the trigger and which, if any, commanded the other to pull the trigger. They maintain that the argument they made to the jury was in good faith based on a reasonable view of the evidence that was presented to that jury.

The People do not intend to call Ms. Szlekovics at defendant Mateo’s trial. The fact that they will not be calling her takes them out of the situation criticized in Thompson v Calderon (120 F3d 1045 [9th Cir] [en banc], cert granted — US —, 138 L Ed 2d 1037).

In the Mateo case, the People also intend to offer evidence of the defendant’s conflicting versions of what occurred. Witnesses will testify that he admitted actually shooting the victim at some points and at others indicated that he commanded Ms. Szlekovics to shoot the victim. To still others, he expressed surprise that Ms. Szlekovics did shoot the victim.

It appears then that in this case the People are merely intending to argue reasonable views of the evidence that could be drawn from the testimony and physical evidence that the jury will be reviewing.

Accordingly, the defendant’s application is in all respects denied.  