People v. DeJesus

• Citation: 507 N.Y.S.2d 144,123 A.D.2d 563
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose DeJESUS, Defendant-Appellant.
• Decision Date: 16 October 1986
• Court: New York Supreme Court Appellate Division

Page 144

507 N.Y.S.2d 144

123 A.D.2d 563

The PEOPLE of the State of New York, Respondent, v. Jose DeJESUS, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Oct. 16, 1986.

D.K. Bertan, Glen Head, for respondent.

I. Mickenberg, New York City, for defendant-appellant.

Before MURPHY, P.J., and ROSS, LYNCH and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Bernard Fried, J.), rendered June 10, 1986, convicting defendant Jose DeJesus, after a non-jury trial, of robbery in the first degree (Penal Law § 160.15[3] ), and assault in the second degree (Penal Law § 120.05[6] ), and sentencing him as a second violent felony offender to two concurrent indeterminate terms of from ten to twenty years' imprisonment, and from three and one-half to seven years' imprisonment, respectively, modified, on the law, defendant's conviction of first degree robbery is reversed, the sentence imposed for that offense vacated, and that charge dismissed from the indictment, and defendant's conviction for second degree assault is reduced to a conviction for the lesser included offense of assault in the third degree (Penal Law § 120.00), and the matter remanded for resentencing in accordance with the reduced conviction, and except as so modified, the judgment is otherwise affirmed.

On the evening of April 30, 1984, Mr. Washington Hinson left his apartment with the intention of moving his car. When he arrived at the vehicle, Hinson found Marilyn Negron sitting on it and asked her to get off, which she did. Co-defendant Peter Rivera then approached Hinson and told him repeatedly that Ms. Negron was his wife. Hinson informed Rivera that he did not care whether Ms. Negron was his wife, he just wanted to move his car. Rivera, however, persisted and was soon joined by appellant, his co-defendants Arcadio Morales and Rafael Vargas, as well as a yet unidentified individual described as a very large bald Hispanic male. Morales grabbed Hinson from behind and wrestled him to the ground whereupon the bald Hispanic reportedly said "Let's kill him". At this, appellant, his co-defendants and the bald Hispanic began to beat Hinson with sticks and chains. The bald Hispanic is said to have brandished a gun. During the beating Hinson felt someone's hand enter his right front pocket and take what he testified was between ten and twelve dollars in currency.

Hinson's wife and son who had been watching the above-described events from their apartment window, arrived on the scene several minutes after the beating started. Mrs. Hinson yelled that she would call the police and Mr. Hinson's assailants left the area. As a result of the beating, Mr. Hinson was spitting up blood, bled from the nose, had double vision, and lost a tooth. He required both medical and dental treatment and still experienced pain and difficulty breathing through his nose at the time of the trial in May, 1985.

Appellant was apprehended the day after the incident. Thereafter a 10-count indictment was handed down against him. Ultimately, appellant was convicted of only two of the offenses charged in the indictment: robbery in the first degree (Penal Law § 160.15[3] ) and assault in the second degree (Penal Law § 120.05[6] ). Appellant was acquitted of three counts (i.e. criminal use of a firearm in the first and second degrees [Penal Law §§ 265.09, 265.08], and robbery in the first degree [Penal Law § 160.15(1) ] ), and the remaining five counts (i.e., robbery in the second degree [Penal Law § 160.10, subdivisions 1 and 2(a) ], criminal possession of stolen property in the third degree [Penal Law § 165.40] and two counts of criminal possession of a weapon in the fourth degree [Penal Law § 265.01(2) ] ) were dismissed.

The problem with which we are faced on this appeal is that the record is devoid of any evidence that appellant intended to rob Mr. Hinson. Even when viewed in the light most favorable to the prosecution, the record discloses only that Rivera took offense at the manner in which Hinson addressed Negron; that a verbal confrontation followed leading to the assault upon Hinson in which Rivera was assisted by four nearby cohorts including appellant; and that sometime during the assault an unidentified party removed currency from Hinson's pocket. We cannot conclude from this sequence of events that appellant and the other assailants together intended to rob Hinson. And while it is clear that whoever removed the money from Hinson's pocket intended to do so, neither Hinson nor any of the other prosecution witnesses were able to identify the culprit.

A conviction of robbery cannot stand without proof of specific intent to steal (People v. Lopez, 58 A.D.2d 516, 395 N.Y.S.2d 455 [1st Dept.1977] ). Where, as here, the co-defendants are charged with acting in...