People v. Androvett

• Decision Date: 14 December 1987
• Citation: People v. Androvett, 522 N.Y.S.2d 218, 135 A.D.2d 640 (N.Y. App. Div. 1987)
• Parties: The PEOPLE, etc., Respondent, v. Thomas ANDROVETT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 218

522 N.Y.S.2d 218

135 A.D.2d 640

The PEOPLE, etc., Respondent, v. Thomas ANDROVETT, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 14, 1987.

Sparrow, Sparrow & Singer, Kew Gardens (Stephen J. Singer and David R. Kliegman, of counsel), for appellant.

Thomas Androvett, pro se.

Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Marea M. Suozzi, of counsel), for respondent.

Before THOMPSON, J.P., and LAWRENCE, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Nassau County (Boklan, J.) rendered April 3, 1985, convicting him of robbery in the first degree (two counts) and kidnapping in the second degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress certain identification testimony.

ORDERED that the judgment is modified, on the law, by reversing the defendant's conviction of kidnapping in the second degree (two counts), vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant's contention that the People failed to establish his guilt beyond a reasonable doubt is without merit. The defendant was convicted of charges stemming from the armed robbery of an IBI Security Service (hereinafter IBI) van on January 30, 1984. William Wilhelmsen and Frank Orrigo, two IBI security guards, testified that as they were about to unload bags of money in the parking lot outside the Norstar Bank in Hempstead, they were accosted at gunpoint by coperpetrators Anthony Ortiz and Edward Rodriguez. The IBI employees were disarmed, handcuffed and forced to lie down in the back of the van while a third perpetrator, whom they did not see, drove the van to a secluded area. The police arrived while the bags of money were being transferred to a waiting blue Mercury automobile. Ortiz and Rodriguez were arrested at the scene. Wilhelmsen and Orrigo were rescued from the hijacked van. The defendant was tried separately from his coperpetrators, and the main issue was the strength of the People's proof regarding the defendant's identity as the third perpetrator.

The record reveals that both Wilhelmsen and Orrigo heard one of the robbers refer to the driver as "Tommy" as the van was being driven away from the bank. Theodore Robinson, the security guard at the Norstar Bank, identified the defendant as being present at the hijacking. Mr. Robinson testified that his attention was drawn to the defendant when he saw him standing about 20 feet away through the rear glass door of the bank. At that time, the defendant addressed him, stating, "You come here". Mr. Robinson made eye contact with the defendant and observed the defendant make what could only be described as a threatening gesture by reaching into his jacket as if he were grabbing for a gun. The defendant's fingerprint was found in the blue Mercury automobile owned by the coperpetrator Rodriguez which was discovered in the area where the IBI van was abandoned. Moreover, at the time of his arrest three days later the defendant misidentified himself to the police, claiming that he was his brother, in an effort to avoid apprehension.

When viewed in a light most favorable to the People, the evidence was legally sufficient to establish the defendant's guilt (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). Although the defendant attempted to controvert this evidence by presenting an alibi defense and innocent explanations for both the presence of his fingerprint in Rodriguez's vehicle and for his behavior at the time of his arrest, these issues were before the jury for its consideration (see, People v. Jeffries, 125 A.D.2d 412, 509 N.Y.S.2d 131, lv. denied 69 N.Y.2d 882, 515 N.Y.S.2d 1030, 507 N.E.2d 1100). It is well settled that questions of credibility and identification are primarily for the jury to determine (see, People v. Rosa, 125 A.D.2d 345, 509 N.Y.S.2d 73, lv. denied 69 N.Y.2d 954, 516 N.Y.S.2d 1038, 509 N.E.2d 373; People v. Caldwell, 125 A.D.2d 402, 508 N.Y.S.2d 1004, lv. denied 69 N.Y.2d 825, 513 N.Y.S.2d 1031, 506 N.E.2d 542). The jury resolved those issues in favor of the People, and we decline to disturb their conclusions. Upon the exercise of our factual review...