People v. Elfe

• Decision Date: 13 July 1971
• Citation: 37 A.D.2d 208,323 N.Y.S.2d 114
• Parties: The PEOPLE of the State of New York, Respondent, v. Donald C. ELFE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 114

323 N.Y.S.2d 114

37 A.D.2d 208

The PEOPLE of the State of New York, Respondent, v. Donald C. ELFE, Appellant.

Supreme Court, Appellate Division, Third Department.

July 13, 1971.

James C. Steenbergh, Dist. Atty., Greene County, Catskill, for respondent.

Alan Francis Ruf, Public Defender, Greene County, Catskill, for appellant.

Before HERLIHY, P.J., and STALEY, COOKE, SWEENEY, and SIMONS, JJ.

COOKE, Justice.

This is an appeal from a judgment of the County Court of Greene County, rendered August 15, 1969, convicting defendant of robbery in the first degree, three counts of assault in the third degree, three counts of possession of weapons and dangerous instruments and appliance (Penal Law, § 265.05, subd. 2) and criminal possession of stolen property in the first degree.

During the midafternoon of July 19, 1968, a Fort Lee, New Jersey automobile salesman reported to the local police that two men earlier had taken a red Pontiac from the lot for a tryout and had failed to return. At about 9:30 that evening State Trooper Gallelli, noticing such a vehicle proceeding northerly with difficulty along the Thruway at a point in Greene County, motioned it to the side of the road. Defendant Elfe was the operator and Thomas G. Howard, subsequently tried jointly with him, was a passenger therein.

Gallelli testified: that, after assisting with the vehicle, he asked for its registration and was told by Elfe that it was in Pennsylvania; that, after informing him that he was going to be arrested for driving an unregistered motor vehicle, after obtaining the vehicle's identification number from a plate on a door post and stating that he would check it through a computer to be sure the car wasn't stolen, Gallelli was confronted by Howard who drew that appeared to be a .45 calibre revolver on him and said, 'This is it'; that immediately previous Gallelli saw Elfe six or seven feet to his rear; that, as Gallelli took a step back, he heard and saw Howard cock the revolver and Gallelli heard the snap go on his safety strap and his loaded Smith & Wesson .357 Magnum revolver was taken from him to the rear; that, after Gallelli was ordered at gunpoint towards some bushes located across the ditch running along the shoulder, Howard then had the trooper's pistol in his hand and the one which he had drawn in his belt; that Howard took Gallelli's handcuffs and manacled the latter's hands behind his back; that after being told to get down and being shoved and while lying upon his stomach, Gallelli's gun belt, identification card, badge, shield, pocket knife and blackjack were taken; that upon departure of Elfe and Howard, Gallelli managed to get back in his patrol car and radioed for assistance; that Howard returned, ripped the microphone from the car, and struck the trooper across the cheek with his own revolver so that he lost consciousness.

Defendant was accused, by the first indictment count, and found guilty of violating subdivision 2 of section 160.15 of the Penal Law which stipulates that '(a) person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: * * * (i)s armed with a deadly weapon.' The count, as amplified by the bill of particulars, charges that the deadly weapon was a .45 calibre Smith & Wesson. A 'deadly weapon', among other things, means 'any loaded weapon from which a shot, readily capable or producing death or other serious physical injury may be discharged' (Penal Law, § 10.00, subd. 12; cf. People v. Davis, 29 A.D.2d 556, 285 N.Y.S.2d 719; People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573). Since there was testimony that said gun was fully loaded when removed from the car, that it had been test fired, would discharge and was operating, despite the fact that the cylinder had to be rotated manually, the jury had every right to find that it qualified as a deadly weapon.

Although there was no testimony that Elfe personally struck the trooper, there was adequate evidence from which the jury could find that he acted 'with the mental culpability required for the commission' of assaultive acts engaged in by Howard (Penal Law, § 20.00). Proof that the trooper's revolver was removed from the rear while Howard held a gun on him, that Elfe had been seen immediately before that behind the trooper, that no one else was observed at the scene and that the trooper's revolver thereafter had been delivered to Howard, as well as the prompt return of Howard to the patrol car after he and Elfe had driven off in a car operated by Elfe, afforded an adequate basis on which the jury could find that Elfe took a guilty part in and intentionally aided Howard in the commission of the assault (cf. People v. Weis, 32 A.D.2d 856, 301 N.Y.S.2d 186, 192--193, cert. den. 397 U.S. 1047, 90 S.Ct. 1377, 25 L.Ed.2d 659; People v. Beaudet, 31 A.D.2d 705, 295 N.Y.S.2d 697).

The second, third and fourth counts of the indictment charged defendant with assault in the second degree in violation of subdivisions 2, 3 and 6 of section 120.05 of the Penal Law, in relation to each of which defendant was found guilty of assault in the third degree. The three charges were separable and involved three different types of conduct, even though arising out of the same transaction, but, in any event, defendant was not prejudiced since his sentence were concurrent, not consecutive (Penal Law, § 70.25, subd. 2; Code Crim.Pro., §§ 279, 279--a, 444, 445; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 266, 268--270, 159 N.Y.S.2d 203,...