People v. Lee — 308 N.Y. 302

Majority

p. 302

The People of the State of New York, Appellant, v. Robert Lee, Respondent. The People of the State of New York, Respondent, v. Donald Sarra, Appellant. The People of the State of New York, Respondent, v. Daniel McCarthy, Appellant.

Argued January 17, 1955;

decided March 10, 1955.

p. 303

Asher Marcus and Francis E. Dorn for Donald Sarra and Daniel McCarthy, appellants, and Robert Lee, respondent.

I. The People’s evidence is insufficient, as a matter of law, to establish the guilt of appellants beyond a reasonable doubt. (People v. Ledwon, 153 N. Y. 10 ; People v. Wrieden, 299 N. Y. 425 ; People v. Gluck, 188 N. Y. 167 ; People ex rel. Hussey v. Woods, 169 App. Div. 146 ; People ex rel. Kelly v. Waldo, 161 App. Div. 731 ; Matter of Reger v. Mulrooney, 241 App. Div. 38 ; People v. Campanaro, 223 App. Div. 248 , 249 N. Y. 545 ; People v. Eng Hing, 212 N. Y. 373 ; Atlantic Works v. Brady, 107 U. S. 192 ; Hoeltke v. Kemp Mfg. Co., 80 F. 2d 912 .) II. The evidence is insufficient, as a matter of laAY, to support a conviction of assault within the meaning of subdivision 3 of section 242 of the Penal Law. (People v. Katz, 290 N. Y. 361 ; People v. Finn, 275 App. Div. 65 ; People v. Plath, 100 N. Y. 590 ; People v. Osinski, 281 N. Y. 129 .) III. A conviction for robbery in the first degree within the meaning of subdivision 2 of section 2124 of the Penal Law is an impossibility. (Baron v. People, 1 Parker Cr. Rep. 246 ; People v. Munroe, 190 N. Y. 435 .) IV. Appellants arc entitled to their immediate discharge instead of being required to stand trial again. (People v. Gluck, 188 N. Y. 167 ; People v. Wrieden, 299 N. Y. 425 .) V. The cases relied upon by the People to support their contention that Lee was sufficiently identified to warrant a new trial as to him do not support the People’s position. (People v. Cassidy, 160 App. Div. 651 ; People v. Taranto, 275 App. Div. 1061 ; People v. Caruso, 184 App. Div. 512 ; People v. Gerace, 254 App. Div. 135 .)

Edward S. Silver, District Attorney (William I. Siegel of counsel), for People of the State of New York.

I. The Appellate Division erred in dismissing the indictment as to Lee. The case

p. 304

should, have been returned to the County Court for a new trial as to him. (People v. Bellows, 281 N. Y. 67 ; People v. Scheinman, 295 N. Y. 142 ; People v. Potskowski, 298 N. Y. 299 ; People v. Campanaro, 223 App. Div. 248 , 249 N. Y. 545 ; People v. Cohen, 223 N. Y. 406 ; People v. Eng Hing, 212 N. Y. 373 ; People v. Seppi, 221 N. Y. 62 ; People v. Trybus, 219 N. Y. 18 ; People v. Lytton, 257 N. Y. 310 ; People v. Brengard, 265 N. Y. 100 ; People v. Reddy, 261 N. Y. 479 ; People v. Stilwell, 244 N. Y. 196 .) II. The action of the Appellate Division in remitting the case against defendants Sarra and McCarthy to the County Court for a new trial was proper. (People v. Ledwon, 153 N. Y. 10 ; People v. McCarthy, 250 N. Y. 358 ; People v. Gluck, 188 N. Y. 167 ; People v. Wrieden, 299 N. Y. 425 ; People v. Katz, 290 N. Y. 361 ; People v. Scott, 153 N. Y. 40 ; People v. Munroe, 190 N. Y. 435 .)

Defendants were convicted of first degree robbery and second degree assault. The Appellate Division reversed the judgments of conviction for errors in the admission of evidence offered by the People, and in the trial court’s charge to the jury. These errors are not in issue on this appeal. As to defendants Sarra and McCarthy, a new trial was ordered; as to defendant Lee, the indictment was dismissed, the majority holding that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

Cross appeals are now before us, the People contending only that as to Lee a new trial should also have been ordered, and defendants Sarrá and McCarthy urging that the indictments should have been dismissed as to them.

We agree with the Appellate Division in their reversal of the convictions, and in ordering a new trial for Sarra and McCarthy. Said defendants’ principal claim here is that their story of a street fight is inherently more believable than complaining witness Lehr’s testimony of robbery and assault. But obviously this problem of credibility was, on the record before us, a matter for the jury, notwithstanding the fact that Lehr had a criminal record (People v. Landers, 264 N. Y. 119 , 122; People v. Arata, 255 N. Y. 374 , 375-376; People v. Cohen, 223 N. Y. 406 , 422, motion for reargument denied 227 N. Y. 623 , certiorari denied 248 U. S. 571 ; People v. Eng Hing, 212 N. Y. 373 ; People v.

p. 305

Campanaro, 223 App. Div. 248 , 252, affd. 249 N. Y. 545 ). Although phrased in terms of sufficiency of the evidence, defendants’ argument is really directed to its weight. It being clear that there was sufficient evidence to support the verdicts against Sarra and McCarthy, the Appellate Division lacked the power, even had it so desired, to dismiss the indictment as to them (People v. Bellows, 281 N. Y. 67 ; People v. Scheinman, 295 N. Y. 142 ; People v. Potskowski, 298 N. Y. 299 ; see, also, People v. Rudolph, 303 N. Y. 73 ). Moreover, even where the evidence at the first trial is insufficient, a new trial may be properly ordered (People v. Orr, 270 N. Y. 193 ; People v. Romano, 279 N. Y. 392 ; People v. Guardino, 286 N. Y. 132 ; People v. Bearden, 290 N. Y. 478 ; People v. Margiotta, 292 N. Y. 26 ; People v. Rosen, 294 N. Y. 761 ; Code Crim. Pro., § 543). Their other contentions are clearly without merit.

As to defendant Lee, however, we are of the opinion that Lehr’s identification of Lee, when considered in the light of all the other evidence, was sufficient for the jury to pass upon, and that the majority of the Appellate Division erred in holding the evidence against Lee to be insufficient as a matter of law.

Accordingly, the orders of the Appellate Division with respect to Sarra and McCarthy should be affirmed. With respect to Lee, the order appealed from should be modified insofar as it dismissed the indictment, the indictment should be reinstated, and a new trial ordered; in all other respects the order should be affirmed. Lee’s application upon the argument of this appeal for a reargument of the motion to dismiss the appeal is denied.

Conway, Ch. J., Desmond, Dye, Fuld, Van Voobhis and Bubke, JJ., concur.

Ordered accordingly.

Cases cited

People v. Ledwon 153 N. Y. 10 N.Y. 1897-05-04 p. 303, p. 304
People v. Wrieden 299 N. Y. 425 N.Y. 1949-07-19 p. 303, p. 304
People v. Gluck 188 N. Y. 167 N.Y. 1907-04-02 p. 303, p. 304
Atlantic Works v. Brady 107 U. S. 192 SCOTUS p. 303
People v. Katz 290 N. Y. 361 N.Y. 1943-04-22 p. 303, p. 304
People v. Plath 100 N. Y. 590 N.Y. 1885-12-08 p. 303
People v. Osinski 281 N. Y. 129 N.Y. 1939-07-11 p. 303
People v. Bellows 281 N. Y. 67 N.Y. 1939-07-11 p. 304, p. 305
People v. Scheinman 295 N. Y. 142 N.Y. 1946-01-24 p. 304, p. 305
People v. Potskowski 298 N. Y. 299 N.Y. 1948-12-02 p. 304, p. 305
People v. Lytton 257 N. Y. 310 N.Y. 1931-11-17 p. 304
People v. Brengard 265 N. Y. 100 N.Y. 1934-07-03 p. 304
People v. Reddy 261 N. Y. 479 N.Y. 1933-04-18 p. 304
People v. Stilwell 244 N. Y. 196 N.Y. 1926-12-31 p. 304
People v. McCarthy 250 N. Y. 358 N.Y. 1929-03-19 p. 304
People v. Scott 153 N. Y. 40 N.Y. 1897-05-04 p. 304
People v. Landers 264 N. Y. 119 N.Y. 1934-04-17 at 122 p. 304
People v. Arata 255 N. Y. 374 N.Y. 1931-02-10 at 375-376 p. 304
People v. Rudolph 303 N. Y. 73 N.Y. 1951-07-11 p. 305
People v. Orr 270 N. Y. 193 N.Y. 1936-03-03 p. 305
People v. Romano 279 N. Y. 392 N.Y. 1939-01-10 p. 305
People v. Guardino 286 N. Y. 132 N.Y. 1941-07-29 p. 305
People v. Bearden 290 N. Y. 478 N.Y. 1943-06-10 p. 305
People v. Margiotta 292 N. Y. 26 N.Y. 1944-01-13 p. 305
People v. Rosen 294 N. Y. 761 N.Y. 1945-04-12 p. 305