People v. Cioffi

Decision Date23 March 1956
Citation133 N.E.2d 703,1 N.Y.2d 70,150 N.Y.S.2d 192
Parties, 133 N.E.2d 703 The PEOPLE of the State of New York, Respondent, v. Armand CIOFFI, Appellant.
CourtNew York Court of Appeals Court of Appeals

Otto F. Fusco, New York City, for appellant.

Daniel V. Sullivan, Dist. Atty., New York City (Walter E. Dillon, New York City, of counsel), for respondent.

VAN VOORHIS, Judge.

Appellant is charged with molesting two young girls, one eleven and the other twelve years of age, upon a single afternoon in the borough of The Bronx. He was indicted for impairing their morals in violation of subdivision 2 of section 483 of the Penal Law, and, in each instance, for assault in the third degree. The jury acquitted him of both morals charges but found him separately guilty of assaulting these two girls. Upon the first of these assault convictions he was committed to the New York City Penitentiary for an indeterminate term under section 203 of the Correction Law. People v. Tower, 308 N.Y. 123, 123 N.E.2d 805. Sentence was deferred upon his conviction of assaulting the other girl until his release from the penitentiary under the first sentence. Defendant has appealed from both of these convictions. In Hogan v. Bolian, 305 N.Y. 110, 111 N.E.2d 233 and People ex rel. Prosser v. Martin, 306 N.Y. 710, 117 N.E.2d 902, it was held that the court lacks power to defer sentence indefinitely. Neither does the court have power to make commitments for consecutive indeterminate terms. People ex rel. Gordon v. Ashworth, 290 N.Y. 285, 49 N.E.2d 140. That means that where a defendant at the same time is convicted of two crimes for each of which separately he might be committed for an indeterminate term under section 203 of the Correction Law, sentence or the operation of sentence must be suspended upon one, if he is to be sentenced pursuant to section 203 under either conviction unless indeterminate sentences upon both run concurrently. The deferment of sentence in this instance cannot be treated as equivalent to a suspension of sentence, as in People v. Shaw, 1 N.Y.2d 30, 150 N.Y.S.2d 161, 133 N.E.2d 681, where the placing of a defendant on probation necessarily implied that sentence and been suspended. The sentence is the judgment in a criminal action, and in the absence of the entry of any judgment, or the suspension of sentence or the operation of sentence, Code Crim.Proc. §§ 517, 750, there is nothing from which a defendant can appeal. People v. Bork, 78 N.Y. 346; People v. Markham, 114 App.Div. 387, 99 N.Y.S. 1092; cf. People v. Harcq, 292 N.Y. 321, 55 N.E.2d 179. Consequently we have no jurisdiction to entertain defendant's appeal from his conviction under the fourth count of the indictment.

Our attention is therefore addressed to reviewing the second count under which he has been found guilty of assaulting the first-mentioned girl. The evidence upon which this charge is based consists of his placing his hands upon her person but without removing her clothing.

The crucial question concerns the identification of the defendant. He denied having done anything of this kind, and his implication in the affair depends upon the testimony of the girl whom he is charged with having molested. It will be recollected that the charges respecting his attentions to both of these girls were tried together, and his identification as the man who molested the girl with respect to whom sentence was deferred (count 4) probably influenced the jury in finding that he was the man who molested the other girl upon the same afternoon and in the same part of The Bronx (count 2). When it came to identifying the man who was involved with the girl with respect to whom sentence was deferred, the court erred in permitting two of her schoolmates to testify that she had identified defendant at the police station, and in permitting a detective to testify that these girls identified defendant upon the same occasion. Such testimony has long been held to constitute reversible error. People v. Jung Hing, 212 N.Y. 393, 401, 106 N.E. 105, 107; People v. De Martini, 213 N.Y. 203, 107 N.E. 501, L.R.A.1915F, 601. Section 393-b of the...

To continue reading

Request your trial
100 cases
  • People v. Baker
    • United States
    • New York Court of Appeals Court of Appeals
    • 27 Noviembre 1968
    ... ... In addition, she was permitted to testify that she had identified a photograph of Felder before the Grand Jury. It is of course settled that a witness may not testify that she previously made a photographic identification of the defendant (People v. Cioffi, 1 N.Y.2d 70, 73, 150 N.Y.S.2d 192, ... Page 756 ... 133 N.E.2d 703; People v. Hagedorny, 272 App.Div. 830, 70 N.Y.S.2d 511; see Wall, [23 N.Y.2d 324] Eye-Witness Identification in Criminal Cases, pp. 165--171). One exception to the rule is where a claim of recent fabrication is made (People ... ...
  • People v. Chambliss
    • United States
    • New York County Court
    • 18 Agosto 1980
    ...unknown to each other the rule of People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 224 N.E.2d 82 and People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192, 133 N.E.2d 703 barring testimony of extrajudicial identifications of photographs would not apply, and such identification could be made fro......
  • State v. Ginardi
    • United States
    • New Jersey Superior Court — Appellate Division
    • 7 Agosto 1970
    ...People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647, 648--650, 224 N.E.2d 82, 83--84 (Ct.App.1966); People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192, 194, 133 N.E.2d 703, 705 (Ct.App.1956), unless the situation be one where the in-court identification of the witness is assailed as a 'recent fa......
  • People v. Brewster
    • United States
    • New York Supreme Court — Appellate Division
    • 12 Marzo 1984
    ...307, 296 N.Y.S.2d 745, 244 N.E.2d 232; People v. Wright, 21 N.Y.2d 1011, 290 N.Y.S.2d 930, 238 N.E.2d 330; People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192, 133 N.E.2d 703; People v. Hagedorny, 272 App.Div. 830, 70 N.Y.S.2d 511). The prohibition against the admission of evidence of photograp......
  • Request a trial to view additional results
1 books & journal articles
  • 16.13 - D. Photos And Police Sketches
    • United States
    • New York State Bar Association NY Criminal Practice Chapter 16 Evidentiary Issues and Objections
    • Invalid date
    ...People v. Griffin, 29 N.Y.2d 91, 323 N.Y.S.2d 964 (1971); People v. Caserta, 19 N.Y.2d 18, 277 N.Y.S.2d 647 (1966); People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192 (1956); People v. Weatherspoon, 52 A.D.2d 709, 381 N.Y.S.2d 568 (4th Dep’t 1976). The prohibition against photographs is not ap......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT