People v. O'Bryan

• Decision Date: 14 January 1971
• Citation: 317 N.Y.S.2d 34,36 A.D.2d 548
• Parties: The PEOPLE of the State of New York, Respondent, v. Gilbert Edward O'BRYAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 34

317 N.Y.S.2d 34

36 A.D.2d 548

The PEOPLE of the State of New York, Respondent, v. Gilbert Edward O'BRYAN, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 14, 1971.

Robert E. Jones, Cortland County Dist. Atty., Cortland (Edward Purser, Cortland, of counsel), for respondent.

David W. Perfetti, Cortland, for appellant.

Before HERLIHY, P.J., and AULISI, STALEY, COOKE and SWEENEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Cortland County rendered April 17, 1970 upon a 1961 verdict convicting defendant of robbery in the first degree and two counts of assault in the second degree, the original judgment of conviction having been vacated and defendant having been remanded for resentence Nunc pro tunc upon the previous finding of guilt (26 N.Y.2d 95, 308 N.Y.S.2d 830, 257 N.E.2d 19).

Thomas McNally, past 75 years of age, testified: that on October 3, 1960 he went to the Owego Restaurant in Cortland where he met defendant and they bought each other a drink; that, when McNally stated he was going home, defendant suggested it was a nice day and offered to take him for a ride in the country; that they went to a restaurant in Groton where further drinks were purchased; that, while returning to Cortland on a different route, along a back road and when it was dark, defendant stated he thought he had a flat tire; that McNally got out first and, while stooping and looking at the right front tire, he was hit in the back of the head and heard iron and steel rattling; that, when he 'came to', defendant was choking him; that after McNally kicked defendant down a bank the latter again choked McNally until he lost consciousness; that upon revival he discovered that a wallet with $27.20 in his pants pocket was gone, and that he was treated for head contusions and scalp lacerations which caused considerable bleeding. Two days later, McNally returned to the scene with a friend where he found his glasses and hat in the grass to the side of the road, a hole having been cut in the hat. Also picked up, about four or five feet from the glasses and next to the paved part of the road, was a car jack handle and, when defendant was discovered another two days later in a car registered in his wife's name and which he allegedly drove on the evening in question, the vehicle did not contain such a tool.

The fact that the jury did not find defendant guilty of the counts of grand larceny for which he was also indicted (see People v. Jackson, 20 N.Y.2d 440, 441--447, 448, 285 N.Y.S.2d 8, 11, 14--15, 16, 231 N.E.2d 722, 727, 728), did not bar the robbery first degree conviction, since each count in the indictment is to be regarded as a separate indictment and consistency in the verdict is not necessary here (Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356; People v. Delorio, 33 A.D.2d 350, 353, 308 N.Y.S.2d 131, 134--135).

The admissibility of the jack handle into evidence was dependent on whether it was...