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People v. Du Byk

Supreme Court of New York, Appellate Division

April 12, 1955

Du Byk

Appeal from a judgment of the County Court of Bronx County, rendered June 9, 1953, upon a verdict convicting defendant of the crime of robbery in the first degree.

Per Curiam.

Appellant was convicted of the crime of robbery in the first degree. On this appeal from the judgment of conviction he claims that he did not receive a fair trial because the District Attorney was permitted to question him at great length about two other crimes of a similar nature. Those crimes had taken place in the same neighborhood as the occurrence for which appellant was being tried. Although appellant denied committing them, the District Attorney attempted to impeach his credibility by further cross-examination. He has that privilege. (People v. Sorge, 301 N.Y. 198, 200.) 'There can, of course, be no doubt as to the propriety of cross-examining a defendant concerning the commission of other specific criminal or immoral acts. * * * And if the questions have basis in fact and are asked by the district attorney in good faith, they are not rendered improper merely because of their number.'

We do not think the good faith of the District Attorney can be seriously questioned. "The manner and extent of the cross-examination lies largely within the discretion of the trial judge."' (People v. Sorge, supra, pp. 201-202; People v. Malkin, 250 N.Y. 185, 197.) There was no abuse of discretion on the part of the trial judge particularly in view of the fact that no objection was taken by appellant's counsel to the continuance of the line of questioning.

It is also contended by appellant that the evidence of identification was insufficient. The only identification was by the victim himself, but it was positive and certainly sufficient to support the jury's finding. To hold that the identification made by the witness Morton is insufficient would practically be the equivalent of saying that identification by the victim of a crime must be corroborated.

It is suggested that the extended cross-examination of the appellant as to the other crimes may have, in view of their similarity, prejudiced the jury on the question of identity and bolstered what otherwise was a weak identification. In the first place as heretofore indicated, the identification was not weak, but was definite and positive. Nor can it be fairly said that the cross-examination by the District Attorney was unnecessarily overextended--certainly not to an extent where it could be considered to have influenced the jury's judgment on the question of identification.

We think the appellant received a fair trial and that the evidence sustains the jury's verdict. The judgment should be affirmed.

BOTEIN, J. (dissenting).

On February 21, 1952, at about 1:45 A.M., the complainant Frank Morton parked his car alongside the entrance to a schoolyard lying between Shakespeare and Nelson Avenues in Bronx County. As he was about to step out Morton was forced back into his automobile by a man who later threatened him with a black automatic gun. After some temporizing he handed over his wallet to the robber, who then fled through the schoolyard.

Morton immediately reported the holdup to the police. He was shown photographs from time to time but could not identify any of them. Finally, eleven months later, after a rather tentative identification of defendant's photograph, he was confronted with him in a precinct station house. Upon the trial Morton

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testified that he immediately recognized defendant as the man who held him up and that after hearing him speak he was positive of his identification. Defendant denied any knowledge of the crime but was taken into custody.

Upon this identification defendant was indicted, brought to trial and convicted. He appeals from the judgment of conviction of the crime of robbery in the first degree, for which he was sentenced as a second felony offender to a term of fifteen to twenty years in State prison.

On February 25, 1952, at 3:00 A.M., four days after the Morton robbery, a taxi driver named Britman was held up in the vicinity of the schoolyard under similar circumstances. The robber also pointed a black automatic and after commission of the crime also fled through the schoolyard. Shortly afterward Britman and two policemen visited defendant's apartment and the policemen searched the premises. It appears from the testimony that Britman failed to identify defendant and that the police search produced nothing incriminating.

A few days later, on March 2, 1952, at 4:30 A.M., another taxi driver named McEachin was held up at the point of a black automatic, at about the same place. Again the robber made his escape through the schoolyard. It can be inferred from the record that McEachin was confronted with defendant ...

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