People v. Bauer

• Decision Date: 30 December 1985
• Parties: The PEOPLE, etc., Respondent, v. Charles A. BAUER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 115

497 N.Y.S.2d 115

113 A.D.2d 543

The PEOPLE, etc., Respondent, v. Charles A. BAUER, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 30, 1985.

W. Alexander Melbardis, Coram, for appellant.

Patrick Henry, Dist. Atty., Riverhead (Steven A. Hovani, of counsel), for respondent.

Before MOLLEN, P.J., and O'CONNOR, NIEHOFF and LAWRENCE, JJ.

MOLLEN, Presiding Justice.

On this appeal, the principal issue dividing this court concerns the sufficiency of the evidence of the defendant's guilt of robbery in the first degree. Viewing the evidence, as we must, in a light most favorable to the prosecution, giving it the benefit of every reasonable inference to be drawn therefrom (see, Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560; People v. Lewis, 64 N.Y.2d 1111, 1112, 490 N.Y.S.2d 166, 479 N.E.2d 802; People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied, --- U.S. ----, 105 S.Ct. 357, 83 L.Ed.2d 264; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that the defendant's guilt was proven beyond a reasonable doubt. There being no other issues warranting reversal, we affirm the conviction.

On January 22, 1979, shortly after 9:30 A.M., a robbery occurred at the Smithtown branch of the National Bank of North America (the bank). Later that day, the defendant, Charles A. Bauer, a member of the Nassau County Police Department, was arrested and charged with committing the robbery.

The defendant has been tried three times in connection with this case. The first trial resulted in a conviction which was subsequently reversed by this court because of an error in the charge to the jury (see, People v. Bauer, 83 A.D.2d 869, 442 N.Y.S.2d 24). The second trial ended in a mistrial because the jury was unable to agree on a verdict. The third trial resulted in the instant conviction for robbery in the first degree, which conviction is the subject of this appeal.

The evidence presented at the third trial has been extensively, albeit, selectively reviewed by the dissent. Suffice it to say that the evidence linking the defendant to the robbery consisted of the testimony of several persons, i.e., a bank customer and bank employees, which testimony established that the defendant was the person who committed the robbery at the bank. Specifically, Barbara McCormick, a bank customer, identified the defendant at two lineups (with the participants seated) which were held on the day the crime was committed, and at the trial. Her testimony placed the defendant in the parking lot in front of the bank shortly before and after the robbery.

A bank manager trainee, Marie-Alice Blanchet, testified that the defendant resembled the person who entered the bank on the day in question at approximately 9:40 A.M., displayed a weapon, and ordered bank employees to fill a bag with money which he took with him when he left the bank. Some two weeks after the robbery, Ms. Blanchet viewed a lineup but did not make an identification. However, the next day she contacted a detective assigned to investigate the robbery and informed him that she could identify the person she thought she had seen in the bank. Ms. Blanchet subsequently identified the defendant as that person.

A third witness, Margaret Horn, who was a teller at the bank, identified the defendant as the masked person who ordered her at gunpoint to put $4,200 into a bag. Ms. Horn thought that, because of his physical appearance (height, weight, etc.), she knew the robber as a bank customer. The defendant, who was in fact a bank customer and who regularly spoke More incriminating was the testimony concerning the getaway car. John Wurzler, the acting branch manager, was present in the bank when the robbery occurred. He followed the robber out of the bank and into the parking lot in front of the bank. Though he momentarily lost sight of the robber, Mr. Wurzler saw him enter a late model black Mercury Cougar with sports wheels and an antenna on the vehicle's left rear side. According to Mr. Wurzler, the license plate number was "171 ABJ".

with employees, was seen by Ms. Horn in the bank approximately one month after the robbery. She compared the defendant's height, build, and manner of walking with those of the robber, and concluded that the defendant and the robber were one and the same person.

Bruce Morin, who was making the morning "drop" for the Genovese Drug Store at the bank's outside deposit box when the robbery was taking place, saw a man exit from the bank, and begin to pull a mask off his head. The man looked in Mr. Morin's direction and then started to run across the parking lot. Mr. Morin followed the man into the parking lot and, at a distance of 12 to 15 feet, saw him enter a 1978 Mercury Cougar, which had a left rear antenna. Initially he stated that the vehicle was blue but later testified that it was black. Mr. Morin identified the defendant as the person he saw enter the Cougar. Mr. Morin was also able to see the vehicle's license plate bearing the number "171 ABJ". However, he testified that the "J" could have been a "T".

A few hours after the robbery, Mr. Morin was driven by some detectives to an area where he identified the vehicle he had seen pull out of the parking lot. The vehicle's license plate number was "171 ARJ"; however, most importantly, the plate was bent at the bottom of the fifth character, viz., under the "R".

Later that day, Mr. Morin was transferred to another vehicle and was taken to New Mill Road. He saw some automobiles parked down the road but was unaware that the Cougar was among them. From a distance of at least 500 feet, ¹ Mr. Morin saw a group of people emerge from a house and enter a vehicle. The defendant, who had just been arrested inside his house at 84 New Mill Road, was one member of that group. However, Mr. Morin was unable to differentiate among the group members. Mr. Morin was thereafter asked to view two lineups, and upon doing so he identified the defendant. According to Mr. Morin, there was no chance that he could be mistaken about his identification.

A police check on the vehicle and license plate disclosed that a 1978 black two-door sedan Mercury Cougar, license plate number "171 ARJ", was registered in the defendant's name, at 84 New Mill Road, Smithtown, New York; the investigation disclosed no other Mercurys with "171" in the license plate number. According to one of the defendant's witnesses, Margaret Soriano, the license plate on the defendant's Cougar was bent several days after he acquired the car; in any event, the plate was bent before January 22, 1979. The defendant admitted that he owned a motor vehicle matching the description of the Cougar bearing license plate number "171 ARJ". ²

Testimony was also presented by the prosecution concerning the weapon which was displayed during the course of the commission of the robbery. The weapon which was seized from the defendant's home at the time of his arrest, and later introduced into evidence at the trial, was identified by John Wurzler, Marie-Alice Blanchet, and Margaret Horn as being similar The perpetrator was described by the People's witnesses as wearing distinctive clothing. John Wurzler testified that the robber wore a three-quarter length leather-type jacket with a light bleach or paint stain on the middle back, and blue jeans with a bleach or paint stain on the right leg. Some five weeks later, when Mr. Wurzler saw him in the bank, the defendant was wearing dungarees and a black leather jacket similar in appearance to the jacket and pants worn by the perpetrator. Linda Straub, a bank employee who witnessed the crime, testified that the perpetrator was wearing a black waist-length leather jacket and faded jeans. There was a baby-blue paint-type stain on the back of the jacket. Defendant admitted that he had owned a black leather jacket. However according to his testimony, defendant allegedly discarded the leather jacket sometime in 1976 after his house had been burglarized and the perpetrators splattered lime green paint on the jacket.

to the one which was displayed during the robbery.

The defense was essentially twofold: alibi and mistaken identity ³. The alibi defense was presented by three witnesses, namely the defendant's wife, Beverly Bauer, a close friend and neighbor, Linda Caracci and Mrs. Caracci's housekeeper, Maureen Forde. These witnesses attempted to establish that the defendant was at home when the robbery occurred. Given the jury verdict of guilt, it is clear that these witnesses, who, because of their interest in the outcome of the case or because of the inconsistencies in their testimony, were successfully impeached by the prosecution. Mrs. Bauer testified that on the date of the robbery, she awoke shortly before 9:30 A.M. and had coffee with the defendant after which he went downstairs while she dressed. The telephone allegedly rang at approximately 9:40 to 9:45 A.M., but Mrs. Bauer did not answer it. Mrs. Bauer further testified that she rejoined her husband in the kitchen at approximately 10:15 A.M. and they left the house at 10:30 A.M.

Mrs. Caracci similarly testified that she telephoned the Bauer residence on the morning of January 22, 1979 and spoke with the defendant. At trial, Mrs. Caracci estimated that the telephone conversation occurred between 9:40 and 9:45 A.M.

The time sequence as presented by Mrs. Bauer's and Mrs. Caracci's trial testimony was sharply contradicted by that offered by the police officers who conducted an investigation shortly after the robbery. Detective Kozen testified on rebuttal that when he interviewed Mrs. Bauer at her home on the afternoon of January 22, 1979, the day the robbery occurred, she stated that she had gotten up at approximately 10:00 A.M. that morning. Similarly, Detective Romano testified that during his interview with Mrs. Caracci a few hours after the robbery, she stated that her...