People v. Bucciferro
| Decision Date | 29 March 1976 |
| Docket Number | No. 60024,60024 |
| Citation | 37 Ill.App.3d 211,345 N.E.2d 738 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John BUCCIFERRO and Michael Liska, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Warren D. Wolfson and Glenn E. Gutsche, Chicago, for defendants-appellants.
Bernard Carey, State's Atty. of Cook County, Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Chicago, of counsel), for plaintiff-appellee.
Defendants John Bucciferro and Michael Liska together with a third defendant were charged with criminal damage to property in that they knowingly damaged a '1969 Chev' belonging to Charles Molter, such damage not having exceeded $150. All three defendants were found guilty in a bench trial. Defendants Bucciferro and Liska were sentenced to 1 year in the county jail, and they appealed from this judgment. The third defendant is not involved in this appeal.
The incident took place in the early morning hours on October 20, 1973 in Cicero. Mr. Molter testified he and two friends were in a tavern, that one of his friends and defendant Bucciferro engaged in an arm wrestle, that a fight broke out which was settled, and he and his two friends then went to another tavern. Mr. Molter testified he left the second tavern to go to a drug store to purchase cigarettes. While between the tavern and the drug store, Mr. Molter saw the defendants and the third defendant damaging his car. According to Mr. Molter, the defendants Bucciferro and Liska smashed the back window, lifted up the hood and pulled out wires, and then closed the hood and kicked the front fender. Mr. Molter hailed a Cicero squad car, reported the damage to his car and went back to the tavern with the officer and pointed out the defendants Bucciferro and Liska as well as the third defendant as the persons who had damaged his car. The officer arrested them and took them to a police station where Mr. Molter signed a complaint. The defendants and their codefendant denied doing any damage to Mr. Molter's car or knowing before their arrest that Mr. Molter had a car.
Defendants arise the following contentions on this appeal: They did not knowingly waive their right to a jury trial because the record does not reflect any opportunity for the public defender to consult with them between his appointment and his statement for the record that the defendants waived their right to trial by jury; the complaints and convictions are void since venue in Cook County was neither alleged in the complaints nor proved at trial; they did not receive effective assistance of counsel; they were denied a fair and impartial trial because of hostility the court showed to the defendants and witnesses; the evidence did not establish that the defendants were guilty beyond a reasonable doubt; the trial judge failed to hold a proper sentencing hearing; and the sentences imposed were excessive.
We are required by People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762, to conclude there was a voluntary and understanding waiver by defendants of trial by jury.
Venue in Cook County, Illinois was sufficiently alleged by the words 'County of Cook' which appeared twice in the printed complaint form and the words 'State of Illinois' which appeared five times. (People v. Williams (1967), 37 Ill.2d 521, 229 N.E.2d 495.) The face of the complaint discloses that the case was to be in the Cicero Court Branch. The proof establishes that the offense took place in Cicero and the court was entitled to take judicial notice of the geographical fact that Cicero is in Cook County. (People v. Taylor (1970), 121 Ill.App.2d 403, 257 N.E.2d 524.) We, therefore, conclude that venue was sufficiently alleged in the complaints and proved at trial.
The transcript of proceedings in the trial court consisted of 40 pages of testimony and colloquy. The case turned upon the conflict between Mr. Molter's testimony that he saw the defendants damage his car and the testimony of the defendants that they did not go near his car. The defendants argue that their counsel by failing to cross-examine Mr. Molter on his identification of the defendants failed in his obligation to provide effective representation.
The record shows that the public defender who represented the defendants Bucciferro and Liska as well as the one who represented the third defendant attempted by their cross-examination to discredit Mr. Molter's identification. Had they pursued this line of cross-examination more vigorously, this might only have resulted in Mr. Molter becoming more positive about his identification and strengthening the account he gave of his opportunity to observe the defendants. Defense counsel presented the testimony of each defendant as well as the third defendant denying they damaged the car. The defendants complain because their counsel did not present a motion for a directed verdict at the end of the State's case, but it is obvious that such a move would have been futile.
The fact that the record does not show a recess or continuance after the public defender was appointed to permit him to consult with the defendants before they pled to the charge, as contemplated by Ill.Rev.Stat.1973, ch. 38, § 113--3(a), did not prejudice the defendants. Nor were the defendants harmed by their counsel's waiver of a closing argument; a separate public defender appointed to represent the third defendant presented a closing argument which covered the evidence as it related to all three of the defendants, and an additional closing argument by the public defender representing the defendants Bucciferro and Liska would have been only repetitious. On this record we cannot say that counsel's representation of the defendants Bucciferro and Liska was so poor he turned the proceeding into a farce, or that he was actually incompetent in carrying out his duties, or even that he failed to provide a minimum standard of professional representation, different tests which have been applied in determining whether a defendant received effective assistance of counsel. People v. Meeks (1975), 27 Ill.App.3d 144, 326 N.E.2d 413.
Neither can we say that the record supports the defendants' contention that the court was hostile to the defendants and this prevented them from receiving a fair trial. The court's rulings on a limited number of inquiries to Mr. Molter on cross-examination, relating to his efforts to purchase cigarettes do not evidence prejudice against the...
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