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PEOPLE STATE NEW YORK v. CALVERT ARMSTRONG (04/02/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.40979 <http://www.versuslaw.com>; 298 N.Y.S.2d 630; 31 A.D.2d 447 April 2, 1969 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.CALVERT ARMSTRONG, APPELLANT Appeal from a judgment of the Supreme Court (Thomas Dickens, J.), rendered November 18, 1966 in Bronx County upon a verdict convicting defendant of robbery in the first degree, grand larceny in the first degree and assault in the second degree. Mary Johnson Lowe for appellant. Kevin P. Gilleece of counsel (Daniel J. Sullivan with him on the brief; Burton B. Roberts, District Attorney), for respondent. Nunez, J. Eager, J. P., McGivern and Markewich, JJ., concur. Author: Nunez


Appeal from a judgment of the Supreme Court (Thomas Dickens, J.), rendered November 18, 1966 in Bronx County upon a verdict convicting defendant of robbery in the first degree, grand larceny in the first degree and assault in the second degree.

Nunez, J. Eager, J. P., McGivern and Markewich, JJ., concur.

Author: Nunez

 Defendant appeals from a judgment entered in Supreme Court, Bronx County on November 18, 1966 convicting him after a jury trial and verdict of robbery in the first degree, grand larceny in the first degree and assault in the second degree. He was sentenced to concurrent reformatory terms not exceeding five years on each charge.

Joseph Marano, a 71-year-old resident of Bronx County, was robbed at knife point of $70 on the night of November 6, 1965. Patrolman Nargi received a description of the alleged assailant through police channels. At about 10 minutes before midnight on the evening of the occurrence Nargi observed the defendant walking north on the opposite side of Morris Park Avenue in The Bronx. He evidently concluded that the defendant fitted the description he had been given of Marano's assailant, crossed the street and approached the defendant. While being questioned by Patrolman Nargi defendant had his right hand in his right coat pocket. The police officer grabbed defendant's wrist and removed his hand from his pocket. He felt the outside of the pocket and on feeling a bulge he entered the pocket and withdrew a knife. A search of the defendant followed, and $45 was taken from his right-hand trouser pocket. He was then placed under arrest.

The court held a pretrial hearing to determine the admissibility of defendant's statements to the police officer prior to the time when the officer discovered he was carrying a knife and placed defendant under arrest. Patrolman Nargi testified as to the defendant's statements to him when he approached the defendant. He denied using any force or coercion in obtaining the answers from the defendant but admitted that he had given defendant none of the warnings required by the Supreme Court in the Miranda decision. The court found the defendant's statements voluntary and admissible on the ground that he was not in custody when the police officer conducted his preliminary interrogation and up to the time when the officer seized his wrist, discovered the knife and placed him under arrest. We find no fault with the court's conclusion and that ruling creates no issue on this appeal.

At the conclusion of the Huntley hearing counsel stipulated that the same testimony was to be considered as the evidence in a hearing on a motion to suppress the evidence seized from the defendant. The court denied defendant's suppression motion.

We note that the court's determination on the latter motion was also correct, and while neither of these rulings is the basis for the appeal at bar, we comment upon them because we are reversing the judgment of conviction on other grounds and ordering a new trial.

At the trial the only witnesses called in support of the People's case were the victim of the robbery and the arresting officer. The taking of testimony was completed in one day and summations, instructions to the jury and verdict on the following day. Thus, as defendant argues, nothing which transpired at the trial may be considered as unimportant or of diminished impact by reason of lengthy or protracted proceedings.

Mr. Marano, the victim, testified that while going home on November 6, 1965 shortly before 11:00 p.m., he had been accosted by his assailant, who placed a knife against his stomach; he was instructed to drop his money or be killed. The assailant took the victim's money and fled from the scene. Mr. Marano asserted that the scene of the occurrence was near a street light and that he was able to and did give a description of the assailant to the police whom he called immediately. He described his assailant as being five feet two or three inches tall, a Negro wearing a black coat. Following the defendant's arrest he was taken handcuffed to the victim's home and he was identified by the victim as his assailant. He testified that $70 had been taken from him and identified the knife taken from the defendant as the weapon used in the robbery. The District Attorney concedes that on cross-examination Mr. Marano was unable to distinguish the knife which he claims the defendant had used from an identical knife introduced into evidence by the defense.

Patrolman Nargi testified that after he had been given a description of the assailant by brother officers he was walking on the north side of Morris Park Avenue at 10 minutes to midnight on the pertinent date; his attention was drawn to the opposite side of the street and to the defendant who fitted that descripion. As Nargi began to cross the street the defendant undertook the same maneuver though he executed it further west. By walking down the middle of the street the patrolman approached the suspect. He asked the defendant where he resided and defendant replied that he lived around the corner. He asked him where he came from and defendant asserted he had been drinking in the bar across the street for the preceding five hours. The officer had passed that establishment only 15 minutes earlier and had not observed the defendant. Thereafter he frisked, searched, and placed the defendant under arrest. The officer further testified that he encountered the defendant three or four blocks from the scene of the robbery. The description he had received was "a small male Negro with a black overcoat." He was not sure whether he had been told that the assailant was young. Besides being the first Negro to match the description, defendant was the first Negro the officer saw in the neighborhood.

The defendant did not testify, nor did he call any witnesses.

Defendant contends that he was deprived of a fair trial because of (1) the court's failure to submit to the jury the issue of the voluntariness of his admissions, and (2) the repeated allusions of the District Attorney in summation to the fact that the defendant did not take the stand.

While the defendant objected to the reception of the admissions, he did not comply with the other necessary steps to preserve his right to raise the question on appeal, by making a specific request to charge, and, if the request is denied, by then taking a proper exception. The Court of Appeals in People v. Cefaro (23 N.Y.2d 283, 288, 289 [1968]) promulgated the rule in the following manner: "In sum we are of the opinion that the mere fact that there has been a pretrial Huntley hearing, without more, does not require a Trial Judge to charge on voluntariness. A Trial Judge is required to charge on voluntariness only if an issue has been raised at the trial by a proper objection, and evidence sufficient to raise a factual dispute has been adduced either by direct or cross-examination. Under these circumstances, if the Judge fails to charge on voluntariness, a defendant must preserve his right to raise the question on appeal by making a specific request to charge, and, if the request is denied, by then taking a proper exception."

The statement in the District Attorney's brief that "the quantum of proof can only be classified as overwhelming" is not supported by the record. The guilt or innocence of the defendant depends solely upon the correctness of the identification of the defendant by the 71-year-old victim who was robbed at knife point in the nighttime. Thus it was essential that the defendant receive a "scrupulously fair trial" as stated by our Court of Appeals in People v. Esposito (224 N. Y. 370, 372). For a trial to be scrupulously fair it must be uninfected by collateral matters such as improper conduct by the District Attorney in his summation. The record discloses an appeal to prejudice and remarks that ...


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