People v. Banks

• Decision Date: 24 July 1980
• Citation: People v. Banks, 431 N.Y.S.2d 202, 77 A.D.2d 742 (N.Y. App. Div. 1980)
• Parties: The PEOPLE of the State of New York, Respondent, v. Archie Myron BANKS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 202

431 N.Y.S.2d 202

77 A.D.2d 742

The PEOPLE of the State of New York, Respondent, v. Archie Myron BANKS, Appellant.

Supreme Court, Appellate Division, Third Department.

July 24, 1980.

Steven S. Katz, Liberty, for appellant.

Joseph Jaffe, Sullivan County Dist. Atty., Monticello (Frank J. Labuda, Asst. Dist. Atty., Monticello, of counsel), for respondent.

Before GREENBLOTT, J. P., and STALEY, MAIN, MIKOLL and CASEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Sullivan County, rendered March 26, 1979, upon a verdict convicting defendant of the crimes of (1) robbery in the second degree, (2) unauthorized use of a motor vehicle, and (3) assault in the second degree.

On Friday evening, September 22, 1978, Richard Rosciano, a 69-year-old retired printer, was driving alone along Broadway in Monticello when he saw defendant standing on Broadway. Mr. Rosciano recognized defendant and he stopped his car and offered him a ride.

Defendant told Mr. Rosciano that he had to go to South Fallsburg, Mr. Rosciano said he was going to the Shop-Rite store and could take him. As they started down Route 42, defendant said he would like to call his friend in Fallsburg first. Rosciano stopped at a telephone booth on the left side of the road, where defendant grabbed him by the throat knocking his glasses off, and began choking him, and asking for his license and wallet. In the struggle, Rosciano's hearing aid was knocked off, and defendant reached into Rosciano's pocket. According to Rosciano, defendant either took or he gave him what money he had, consisting of a five-dollar bill and two to four singles.

During the struggle, Rosciano managed to open the car door and he either fell or was pushed out of the car, whereupon defendant drove off with the car. Rosciano attempted to flag down several automobiles, with no success. He then walked down the road until he reached a gas station, where he called the police. The police arrived, obtained his story, and took him to the hospital for treatment. Later that evening the police were called to an automobile accident at the intersection of Old Route 17 and the Thompsonville Road. At that location, they found Mr. Rosciano's car wrecked, and, after a conversation with people at the scene, proceeded eastbound down Route 17 to locate the occupants of the wrecked car. They found defendant and Carl Albert Jones, Jr., and arrested both of them.

Defendant testified that he was walking down Broadway when he heard a horn blowing, and Rosciano motioned to him to come over to the car. Although he previously testified he was returning to a friend's house, he testified that he told Rosciano that he was trying to get to New York, and Rosciano told him to get in and he would take him to New York. As they proceeded down Route 42, Rosciano went past the New York route sign, and put his hand on defendant's thigh and started rubbing it. Defendant removed his hand, and a short distance later Rosciano again put his hand on his thigh, and he removed it again. Rosciano then turned into a gas station which was closed and again grabbed his leg, whereupon defendant pulled Rosciano out of the car, and drove off with the car. He denied choking or hitting Rosciano, or stealing his money.

Carl Jones, Jr., testified that, on September 22, 1978, between six and seven o'clock, he was hitchhiking on Broadway in Monticello when he was picked up by defendant, and told defendant he was going to South Fallsburg. Defendant said, "Okay". As they proceeded along Route 42, he saw a man with his hands up and yelling. He described the man as old, with white hair and a beard. He pointed him out to defendant, and defendant said, "Yes, I beat him up and took his car," and "I was married to his daughter". He also testified that defendant was wearing a yellow jacket with blood stains on it, and when he mentioned the blood on the jacket defendant took it off and threw it out. Shortly thereafter, they were involved in an accident. The jury convicted defendant of robbery in the second...