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People v. Ruberto

10 N.Y.2d 428 Court N.Y. Decision date 1962-01-11 English

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p. 428
The People of the State of New York, Respondent, v. Vincent Ruberto, Appellant.
Argued November 30, 1961;
decided January 11, 1962.
p. 429
Harry Heller for appellant.
I. The denial by the trial court of Ruberto’s motions to dismiss the indictment as against him, to direct a verdict of acquittal, and to set aside the verdict of the jury was reversible error. (People v. Ledwon, 153 N. Y. 10 ; People v. D’Antonio, 5 A D 2d 164 ; People v. Malizia, 4N Y 2d 22.) II. The trial court erred in its charge to the jury in respect to the testimony' of an accomplice as prescribed by section 399 of the Code of Criminal Procedure. (People v. Elbroch, 250 App. Div. 583 ; People v. Curatolo, 7 A D 2d 996 .) III. The failure of the trial court to charge respecting character evidence was error. (People v. Viscio, 241 App. Div. 499 ; People v. Roach, 215 N. Y. 592 ; People v. Collins, 265 App. Div. 756 .) IV. The conduct of the District Attorney and the bias by the court during the trial deprived appellant of a fair trial and constitutes reversible error. (People v. O’Regan, 221 App. Div. 331 ; People v. De Martine, 205 App. Div. 80 ; People v. Tassiello, 300 N. Y. 425 ; People v. Fielding, 158 N. Y. 542 ; People v. Esposito, 224 N. Y. 370 ; People v. Levan, 295 N. Y. 26 ; Berger v. United States, 295 U. S. 78 .) V. Admitting into evidence the deposition of defendant was a prejudicial error.
Edward S. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.
I. Appellant’s guilt was established beyond a reasonable doubt. (People v. Dixon, 231 N. Y. 111 ; People v. Reddy, 261 N. Y. 479 ; People v. Crum, 272 N. Y. 348 ; People v. Kress, 284 N. Y. 452 ; People v. Peller, 291N. Y. 438; People v. Henderson, 298 N. Y. 462 ; People v. Malizia, 4 N Y 2d 22 ; People v. Place, 157 N. Y. 584 ; People v. Conroy, 97 N. Y. 62 ; People v. Gorski, 236 N. Y. 673 ; People v. Harris, 306 N. Y. 345 ; People v. Woltering, 275 N. Y. 51 ; People v. Razezicz, 206 N. Y. 249 ; People v. Lewis, 275 N. Y. 33 ; People v. May, 290 N. Y. 369 ; People v. Leyra, 1 N Y 2d 199 .) II. No errors of law were committed on the trial. (People v. Trimarchi, 231 N. Y. 263 ; People ex rel. Perkins v. Moss, 187 N. Y. 410 ;
p. 430
People v. Johnson, 185 1ST. Y. 219.) III. Appellant was accorded a fair trial. (People v. Tassiello, 300 N. Y. 425 ; People v. Lovello, 1 N Y 2d 436 ; People v. Ohanian, 245 N. Y. 227 ; People v. Knapper, 230 App. Div. 487 ; People v. Mendes, 3 N Y 2d 120 .)

The witness Guglielmiui implicated the defendant in the commission of the crime of which he stands convicted and, even if he were deemed an accomplice, defendant’s false stories, evincing as they do a consciousness of guilt on his part, constituted—in the light of the entire record before us — the essential corroborative evidence for accomplice testimony. (See People v. Leyra, 1 N Y 2d 199 , 208; People v. Deitsch, 237 N. Y. 300 , 303.) We would merely add that, in reaching our decision to affirm, we considered the defendant’s contention that the prosecutor acted improperly in making certain remarks on summation, despite the absence of a motion for a mistrial or a request for instructions to the jury with respect to the statements now challenged. In People v. Lovello ( 1 N Y 2d 436 , 439), this court, relaxing the strict rule expressed in other cases (see, e.g., People v. Pindar, 210 N. Y. 191 ,196-197; People v. Levine, 297 N. Y. 144 , 148), held that an objection and an “ adequate exception” to an adverse ruling by the court with respect to that objection were sufficient to preserve the question for our review.

The judgment appealed from should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.

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