People v. Davis
| Decision Date | 18 December 1967 |
| Parties | The PEOPLE, etc., Respondent, v. Edsel Charles DAVIS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Thomas J. Mackell, Dist. Atty., Queens County, Kew Gardens, for respondent, Sidney Baumgarten, Asst. Dist. Atty., of counsel.
Abraham Werfel, Jamaica, for defendant-appellant.
Before BELDOCK, P.J., and CHRIST, RABIN, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Queens County, dated April 20, 1966, convicting defendant of robbery in the first degree and other related crimes, upon a jury verdict, reversed, on the law, and new trial granted. The findings of fact below are affirmed.
In our opinion, it was error for the prosecutor in his summation to offer his personal belief as to the truthfulness of the complainant's testimony (People v. Lovello, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483; People v. Jackson, 7 N.Y.2d 142, 196 N.Y.S.2d 79, 164 N.E.2d 381; People v. Mantesta, 27 A.D.2d 748, 277 N.Y.S.2d 442; Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314).
With identification not in issue, it was also error to permit, on direct examination, prior identification from police photographs (People v. Mantesta, supra; People v. Chandler, 19 A.D.2d 577, 240 N.Y.S.2d 188; People v. Hagedorny, 272 App.Div. 830, 70 N.Y.S.2d 511).
In the main charge the trial court correctly instructed the jury that, under section 2124, subdivision 1 of the Penal Law, robbery in the first degree may be committed by a person being armed with a dangerous weapon, but that the weapon (pistol) must be loaded and capable of being fired. The court also charged alternative elements of robbery in the first degree, under other subdivisions of the section, i.e., being aided by an accomplice actually present (subd. 2) and being aided by the use of an automobile (subd. 3). During the deliberations the jury returned and inquired as to what constituted first degree robbery and whether under the count of possessing a dangerous weapon the jury could assume that the weapon is workable, or whether there must be such evidence. The court then quoted subdivision 1 of section 2124 () and continued, 'and a gun, pistol, is considered a dangerous weapon.' With respect to the 'possession' count of the indictment (Penal Law, § 1897), the court properly charged that the gun had to be in working order, but then stated, 'but that in no way would detract from the situation...
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