APPEAL from a judgment of the County Court of Sullivan County (COSTA, J.), rendered July 6, 1953, upon a verdict rendered June 30, 1953, convicting defendants of the crime of attempted robbery in the first degree.
F. Walter Bliss for appellants.
Benj. Newberg, District Attorney, for respondent.
FOSTER, P. J.
Defendants appeal from a judgment of conviction rendered against them in the Sullivan County Court on June 30, 1953, for the crime of an attempted robbery in the first degree. The appellant Catalfano was sentenced to imprisonment for an indefinite period of from seven and one-half to fifteen years, with an additional period of five years for being armed with a dangerous weapon. The appellant Steele was sentenced, as a second offender, to a minimum of fifteen years and a maximum of twenty-five years, and a five-year additional term for being armed with a dangerous weapon.
According to the People's proof, the attempted robbery took place shortly after nine o'clock on the morning of July 5, 1952, in the rear of a business establishment known as Mauer's Grocery Store & Meat Market, on Main Street in the village of
Liberty, N.Y. The attempted victim was one Emanuel Seiken, who had a lingerie shop adjacent to the Mauer building, the entrance to which was a walled alley or driveway, wide enough to admit the passage of one car.
Seiken testified that after he parked his car and started to walk towards his store by way of the driveway two men came towards him with guns in their hands, and someone said 'This is a stick-up'. He backed up and fell over a garbage can, and in trying to get up he lost his balance and fell again. How long he lay upon the ground he was unable to tell, but when he got up he did not see anybody and he then went to his store. Just when the police were called is not clear but apparently an alarm was given immediately. He was corroborated by the testimony of Edwin Mauer, who worked in the grocery store and meat market. Mauer had a customer that morning who appeared to have a swollen jaw and was holding a handkerchief on it. A short time later he went to the parking space in the rear of the store and saw a strange car there with a man alongside of it. This man appeared to be wearing the same clothes he had seen on the customer with the swollen jaw a few moments before. He asked the man to leave because the parking space was private, and went on towards a storage house. Then he observed Seiken being forced backward by another man who had a metal object in his hand; and he also saw Seiken trip over some rubbish. About this time someone approached him with a gun and told him to keep walking, which he did. However he observed the strange car leave by way of the driveway and there were three men in the front seat.
Neither Seiken nor Mauer could or would identify either of the appellants as being connected with the alleged holdup, but Mauer afterward identified a person known as Kowalsky as being one of the men he saw.
At about nine thirty that morning Mrs. Lotz, a bookkeeper employed in Liberty, attempted to drive her car through the driveway to park in the rear of Mauer's store, and was forced to back up because another car was coming out. There were three men in the front seat and they appeared to be in a great hurry. At approximately this time one Archie Tremper was on the sidewalk in the vicinity of Mauer's store, and his attention was attracted to a car coming out of the driveway by the apparent haste of the driver. He observed that the license plate number on the rear of the car was 3T-75-91. Subsequently it developed that the car was owned by the appellant Catalfano,
and it was being operated by him at the time that he and Kowalsky ...