People v. Abney
| Decision Date | 28 June 1990 |
| Citation | 162 A.D.2d 372,558 N.Y.S.2d 493 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Raymond ABNEY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
T.J. Aisenson, New York City, for respondent.
N.J. Sobchak, Flushing, for defendant-appellant.
Before MURPHY, P.J., and SULLIVAN, MILONAS, ROSENBERGER and ASCH, JJ.
Judgment, Supreme Court, New York County (Shirley Levittan, J.), rendered February 3, 1988, convicting defendant, after a jury trial, of two counts of murder in the second degree, and one count each of burglary in the first degree and robbery in the first degree and sentencing him to concurrent indeterminate terms of imprisonment of from fifteen years to life on the murder counts, and from five to fifteen years each on the burglary and robbery counts, reversed, on the law, and the indictment dismissed.
Defendant was jointly tried with Terry Angel for the murder of Walter Grant, who was beaten across the head with a hammer during the course of a burglary of Grant's apartment. Defendant was also charged with burglary and robbery in connection with the incident.
In a decision released simultaneously herewith, this court has reversed Angel's murder conviction and dismissed the indictment against him. The court found that the only direct evidence against Angel was the testimony of Rosa Robinson Cody, the victim's girlfriend, that on the morning of the incident Angel was with defendant and Reed across the street from the victim's apartment, the latter two carrying a television belonging to the victim, and Cody's testimony that after following the three men to a game room alleged to be a "crack house", she saw defendant say something to Reed, who then started towards Cody. This evidence was held insufficient to sustain Angel's conviction. (People v. Angel, 158 A.D.2d 145, 558 N.Y.S.2d 489.)
Since the only distinction between the two cases--that defendant Raymond Abney was one of the persons carrying the television set--is without legal significance, we think that the evidence here is similarly insufficient. Our dissenting colleague relies on the presumption that flows from recent exclusive possession of stolen goods. While defendant's possession of the television set may have been recent, it was not exclusive. Moreover, while recent exclusive possession of the fruits of a crime shortly after it occurred justifies, but does not require, the inference that the possessor was the thief (People v. Shurn, 69 A.D.2d 64, 69, 418 N.Y.S.2d 445; People v. Donaldson, 107 A.D.2d 758, 759, 484 N.Y.S.2d 123; see, also, People v. Baskerville, 60 N.Y.2d 374, 382, 469 N.Y.S.2d 646, 457 N.E.2d 752), we do not think that defendant's conviction can be sustained on the basis of this circumstantial evidence alone. Since this is a purely circumstantial case, the People were obliged to exclude every reasonable hypothesis of innocence; the inference of guilt must be the only one that can be drawn from the evidence. (People v. Sanchez, 61 N.Y.2d 1022, 1024, 475 N.Y.S.2d 376, 463 N.E.2d 1228). At most, the evidence here would support a finding that defendant, acting in concert with Reed and Angel, criminally possessed the television. Since Reed admitted the burglary, it was possible that he burglarized the apartment alone or with someone other than defendant and that Reed or the other person or both assaulted Grant. Later, Reed could have sought out defendant or defendant and Angel, both of whom were known in the neighborhood, to help dispose of the property for a portion of the proceeds.
The cases cited by our dissenting colleague do not dictate a contrary result. In both People v. Donaldson, 107 A.D.2d 758, 484 N.Y.S.2d 123 and People v. Velez, 136 A.D.2d 753, 524 N.Y.S.2d 88, app. den., 71 N.Y.2d 904, 527 N.Y.S.2d 1013, 523 N.E.2d 320 there was other, highly incriminating evidence pointing to the defendant's guilt. In People v. Ayers, 135 A.D.2d 825, 522 N.Y.S.2d 929 and People v. Green, 128 A.D.2d 890, 513 N.Y.S.2d 815, the defendant's recent exclusive possession warranted only one inference, i.e., guilt. That is not the case here.
In view of our determination dismissing the indictment, we find it unnecessary to address defendant's remaining contentions.
All concur except MILONAS, J., who dissents in part in a memorandum as follows:
In my opinion, the judgment being appealed herein should be reversed and the matter remanded for a new trial.
Defendant Raymond Abney and his co-defendant, Terry Angel, were convicted, following a jury trial, of two counts of murder in the second degree, one count of robbery in the first degree and one count of burglary in the first degree as the result of an incident which occurred on June 13, 1985 when Walter Grant, sixty-two years of age, was bashed on the head with a hammer during the course of a burglary of his apartment. The victim, who sustained skull fractures and other severe head trauma, died in the hospital on November 2, 1985 after a series of medical procedures failed to save his life. Two men, Angel and Ronald Reed, were arrested on the evening of the crime in the vicinity of the victim's home, and further investigation subsequently led the police to defendant. Defendant and Angel were thereafter tried jointly and convicted largely on the basis of the testimony of the deceased's girlfriend, Rosa Cody, that during the early morning of June 13th, 1985, she observed Reed and defendant, whom she knew as "Pee Wee", walking east on the block across the street from the Grant's building and carrying a television set covered by a bed sheet. Angel was beside the two men and had a paper bag in his hand. There was no one else around when she saw the men, all of whom she was acquainted with from the neighborhood. She followed the three individuals as they walked north, eventually entering a "game room" where they deposited the television set on the floor. The television resembled one that the victim had purchased for the apartment which he and Cody shared. Reed, in effect, chased Cody out of the establishment, and she then ran to a friend's home which was situated near that of the victim and announced that she believed that Angel had her television. She proceeded to Grant's building, and, after speaking briefly with the superintendent, went to the former's apartment. The door was slightly ajar, and the lights inside were off. Cody turned the lights on and discovered that the premises had been ransacked, and things were scattered all about. The new television, along with some other items, was missing. In the bedroom, the victim was lying on the edge of the bed in a puddle of blood, his feet hanging off.
In addition, Eugene Wilkerson, who was the cousin of the deceased's former wife and had been residing in the subject apartment for the past several months, testified that he had accompanied Grant when the latter purchased a new television set for the apartment. Although Wilkerson had been in the apartment during the commission of the crime (the perpetrators had locked him in his room by placing a coat hanger wire through a hole in the doorknob), he was apparently unaware of what had happened until Cody removed the wire, thereby releasing him. According to Wilkerson, the television set had been in the living room the previous night. Both he and Officer Daniel Waldvogel, one of the policemen who responded to a radio call concerning the events in question, confirmed that the apartment was in disarray and that the victim was lying half on the bloodied bed and half off, barely conscious and bleeding from head injuries. It should also be noted that the medical examiner stated that the condition of the deceased's skull was consistent with a depressed skull fracture caused by a blow with a blunt instrument. Further, while the death did not occur until months later, there was clear evidence that it was directly attributable to the initial head injuries suffered in the course of the commission of the crime.
On appeal, defendant urges, in part, and the majority considers persuasive, that the proof was insufficient to support the verdict since he was never observed entering or leaving the apartment; that there was no physical evidence establishing that he had been in the premises or that the victim's death resulted from action taken in the course of, or in furtherance of, or in immediate flight, from the crime. However, the jury found defendant guilty, and, therefore, it is axiomatic that the evidence at trial must be viewed in the light most favorable to the People (People v. Malizia, 62 N.Y.2d 755, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. den., 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932; People v. Kennedy, 47 N.Y.2d 196, 417 N.Y.S.2d 452, 391 N.E.2d 288). As the Court of Appeals declared in People v. Contes, supra, "[t]he standard for reviewing the legal sufficiency of evidence in a criminal case is whether 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (60 N.Y.2d at 621, 467 N.Y.S.2d 349, 454 N.E.2d 932, emphasis in original). In that regard, it cannot be held as a matter of law that a rational trier of the facts was unwarranted in finding defendant guilty beyond a reasonable doubt. Certainly, defendant's recent and exclusive possession of the fruits of the crime which, since it was unexplained, was sufficient to create an...
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People v. Abney
...567 N.Y.S.2d 204 77 N.Y.2d 835, 568 N.E.2d 653 People v. Abney (Raymond) COURT OF APPEALS OF NEW YORK JAN 09, 1991 Alexander, J. 162 A.D.2d 372, 558 N.Y.S.2d 493 App.Div. 1, New York Denied ...