People v. Coleman

• Decision Date: 30 December 1983
• Citation: 471 N.Y.S.2d 380,98 A.D.2d 942
• Parties: The PEOPLE of the State of New York, Respondent, v. John G. COLEMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 380

471 N.Y.S.2d 380

98 A.D.2d 942

The PEOPLE of the State of New York, Respondent, v. John G. COLEMAN, Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 30, 1983.

Douglas P. Rutnik, Public Defender, Albany (Shawn D. Flaherty, Albany, of counsel), for appellant.

Sol Greenberg, Dist. Atty., Albany (George H. Barber, Asst. Dist. Atty., Albany, of counsel), for respondent.

Before SWEENEY, J.P., and KANE, MIKOLL, YESAWICH and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Albany County, rendered June 17, 1981, upon a verdict convicting defendant of the crime of robbery in the third degree.

Defendant was indicted for the crime of robbery in the second degree. The indictment charged that he forcibly stole property, including a pocketbook, from Joyce Martino on or about November 1, 1980 by use of physical force which caused physical injury.

Martino testified at trial that at about 10:00 P.M. on the above-mentioned date, she was approached as she was walking on a sidewalk by a black man who, after a struggle, threw her down and ran off with her pocketbook. Martino had an opportunity to view him as he approached her and during the struggle, when his face was about one foot from her face for about 15 to 20 seconds. The scene was illuminated by a street light. She described her assailant to police as a six-foot tall black man with a medium build and a mustache, wearing maroon pants, a dark windbreaker and a dark knit hat. She also described the money she had in her purse at the time as $18. A $10 bill was on the inside with eight $1 bills rolled around it.

Two young men came upon the scene as defendant was fleeing and gave chase. William Hughes testified that he chased defendant to a red Volkswagen car which defendant entered. Hughes looked into the window of the driver's side of the car at defendant as defendant attempted to maneuver the car out of its parking space. A street light directly above the car allowed Hughes to clearly see defendant. Hughes said he was eye-to-eye with defendant for about 6 to 10 seconds. Hughes also observed the license number of the car as it started to drive off as 787-JFA. It was the same car in which defendant was later apprehended.

As defendant was being booked, an officer removed a roll of bills from one of his pockets totalling $18. A $10 bill was on the inside of the roll with eight $1 bills around it.

Defendant took the stand and offered a "mistaken identification" defense, claiming to be at and near an Albany bar at the time attempting to purchase marihuana. He said that at 8:00 P.M., he gave $150 and loaned his girlfriend's red Volkswagen car to a man named "Gary Lasson or Lazarus", whom he did not know, upon the promise that the man would return with marihuana. The man returned with the car shortly after 10:10 P.M. He gave $18 back to defendant but no marihuana. Defendant then drove off with "Gary" and stopped at a park where he allegedly beat up "Gary" and left him lying on the ground. Defendant next drove home, changed his clothes, obtained some money from his girlfriend and drove off again in the same red Volkswagen. The police spotted the red Volkswagen and a chase ensued which resulted in a collision between the Volkswagen and a detective's car and the arrest of defendant.

Charles Welcome, who left the bar at about 10:00 P.M., confirmed defendant's presence there until that time. He identified "Gary" as Ronald Ross. Leon Coles also testified to defendant's presence at the bar. Defendant's wife, who at the time of the incident was his girlfriend, testified that defendant telephoned her at 10:05 P.M. The two male witnesses had prior criminal records.

The jury found defendant guilty of robbery in the third degree, which had been submitted as a lesser included offense of robbery in the second degree. A hearing was held and defendant was sentenced as a persistent felony offender to a term of imprisonment of from 25 years to life. This appeal followed.

Defendant urges that his conviction should be reversed on several grounds. We find his arguments unpersuasive and conclude that the judgment of conviction should be affirmed.

Defendant first argues that the trial court's alibi instruction, to the extent it may be viewed as placing the burden of proof with respect to the alibi on defendant, deprived him of due process and warrants a reversal despite his failure to request a different charge or except to the charge as given (see People v. Patterson, 39 N.Y.2d 288, 296, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281). It also appears that the trial court gave virtually the same alibi instruction that this court has twice held to be contrary to law in that it implies that defendant bears some burden of proof on the alibi (People v. Hoke, 96 A.D.2d 644, 466 N.Y.S.2d 747; People v. Landor, 92 A.D.2d 625, 459 N.Y.S.2d 916). However, the Court of Appeals has asserted that:

* * * when a court's specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided * * * (People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430 [citations omitted] ).

In People v. Whalen, 59 N.Y.2d 273, 279-280, 464 N.Y.S.2d 454, 451 N.E.2d 212, the Court of...