People v. Azzara

• Citation: 525 N.Y.S.2d 890,138 A.D.2d 495
• Parties: The PEOPLE, etc., Respondent, v. Charles J. AZZARA, Appellant.
• Decision Date: 14 March 1988
• Court: New York Supreme Court — Appellate Division

Page 890

525 N.Y.S.2d 890

138 A.D.2d 495

The PEOPLE, etc., Respondent, v. Charles J. AZZARA, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 14, 1988.

John F. Middlemiss, Jr., Ronkonkoma (Monroe A. Semble, of counsel), for appellant.

Patrick Henry, Dist. Atty., Riverhead (Mark D. Cohen, of counsel), for respondent.

Before BRACKEN, J.P., and WEINSTEIN, RUBIN and SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from (1) a judgment of the County Court, Suffolk County (Weissman, J.), rendered July 10, 1985, convicting him of robbery in the first degree under Indictment No. 152/83, upon a jury verdict, and imposing sentence, (2) a judgment of the same court, rendered July 10, 1985, convicting him of bail jumping in the first degree under Indictment No. 1211/84, upon his plea of guilty, and sentencing him to an indeterminate term of imprisonment of 3 1/2 to 7 years to run concurrent with the sentence imposed on the conviction of robbery in the first degree under Indictment No. 152/83, and (3) an amended judgment of the same court (Seidell, J.), rendered July 10, 1985, convicting him of violation of probation under Superior Court Information W-3374-82, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment under Indictment No. 152/83, and the amended judgment under Superior Court Information W-3374-82 are affirmed; and it is further,

ORDERED that the judgment under Indictment No. 1211/84 is modified, on the law and as a matter of discretion in the interest of justice, by reducing the minimum term of the sentence imposed on the conviction of bail jumping in the first degree from 3 1/2 to 2 1/3 years; as so modified, the judgment under Indictment No. 1211/84 is affirmed.

Contrary to the defendant's assertions, we find that the testimony of the complainant alone was sufficient to support the conviction of robbery in the first degree ( see, People v. Arroyo, 54 N.Y.2d 567, 578, 446 N.Y.S.2d 910, 431 N.E.2d 271, cert. denied 456 U.S. 979, 102 S.Ct. 2248, 72 L.Ed.2d 855). The testimony of the complainant demonstrated that she was accosted by the defendant in her car, that he threatened her with a handgun, and that he subsequently took $46 in cash from her. The jury could reasonably have decided to credit her testimony, particularly in view of the certainty with which she identified the defendant as her assailant, and to reject that of the alibi witnesses ( see, People v. Hooper, 112 A.D.2d 317, 318, 491 N.Y.S.2d 766). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15[5] ).

We further conclude that the alibi charge, viewed in its entirety, properly conveyed the relevant principles of law to the jury even though the trial court did not specifically state that the People were required to disprove the alibi beyond a reasonable doubt ( see, People v. Hydleburg, 127 A.D.2d 792, 512 N.Y.S.2d 188, lv. denied 70 N.Y.2d 648, 518 N.Y.S.2d 1041, 512 N.E.2d 567). Significantly, the court emphasized to the jury that the defendant had no burden to prove his innocence, and that the People had the entire burden of establishing that the defendant was the individual who had in fact committed the crime ( cf., People v. Victor, 62 N.Y.2d 374, 378, 477 N.Y.S.2d 97, 465 N.E.2d 817). The court also instructed the jury that even if it disbelieved the testimony of the alibi witnesses, the People were still required to prove the defendant's guilt beyond a reasonable doubt (cf., People v. Ciesluk, 106 A.D.2d 514, 483 N.Y.S.2d 49). The charge thus unequivocally conveyed to the jury that the People bore the burden of disproving the alibi defense beyond a reasonable doubt, and the failure of the court to state this...