People v. Gentile

• Citation: 511 N.Y.S.2d 901,127 A.D.2d 686
• Parties: The PEOPLE, etc., Respondent, v. Steven GENTILE and William Rydstrom, Appellants.
• Decision Date: 09 February 1987
• Court: New York Supreme Court — Appellate Division

Page 901

511 N.Y.S.2d 901

127 A.D.2d 686

The PEOPLE, etc., Respondent, v. Steven GENTILE and William Rydstrom, Appellants.

Supreme Court, Appellate Division,

Second Department.

Feb. 9, 1987.

Diarmuid White, New York City (Herald Price Fahringer, of counsel), for appellant Steven Gentile.

Herald Price Fahringer, New York City (Diarmuid White, of counsel), for appellant William Rydstrom.

Patrick Henry, Dist. Atty., Riverhead (Howard H. Heckman, of counsel), for respondent.

Before THOMPSON, J.P., and BRACKEN, BROWN and EIBER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant Steven Gentile (1) from a judgment of the County Court, Suffolk County (Namm, J.), rendered June 10, 1985, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence, and (2) by permission, from so much of an order of the same court, dated January 23, 1986, as denied his motion to vacate the judgment of conviction pursuant to CPL 440.10 and 440.30.

Appeal by the defendant William Rydstrom (1) from a judgment of the County Court, Suffolk County (Namm, J.), rendered October 15, 1985, convicting him of robbery in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence, and (2) by permission, from so much of an order of the same court, dated January 23, 1986, as denied his motion to vacate the judgment of conviction pursuant to CPL 440.10 and 440.30. The appeal by the defendant Rydstrom brings up for review an order of the same court, dated August 15, 1985, which denied his motion to set aside the verdict pursuant to CPL 330.30 and 330.40.

ORDERED that the judgments are reversed, on the law and the facts, the indictment is dismissed, and the matter is remitted to the County Court, Suffolk County, for the purpose of entering an order in its discretion pursuant to CPL 160.50; and it is further,

ORDERED that the appeals from the order dated January 23, 1986, are dismissed as academic.

At about 3:00 A.M. on July 28, 1981, first inside and then outside of the Pioneer Diner in Smithtown, the defendants were involved in an altercation with four off-duty Suffolk County Police Officers and two of their friends which resulted in numerous injuries to some of the participants. After the defendants fled, Detective Robert Sisino's badge and badge case were discovered to be missing. The defendants, who, like the off duty officers and their friends, had been drinking earlier in the evening, were thereafter arrested, and each was subsequently indicted and charged with two counts of robbery and three counts of assault. There were no independent witnesses to the fight, and at the trial the jury was presented with two entirely different versions of what had occurred. The police officers claimed that they were attacked without provocation, and Detective Sisino testified that the defendant Gentile reached into his back pocket as he lay on his back outside the diner being beaten by both of the defendants and removed his badge and badge case. Sisino also claimed that the defendant Rydstrom grabbed a gold chain from around his neck just before he fled. Rydstrom, on the other hand, testified that the off-duty officers had overreacted to some obscene remarks made inside the diner by a young woman with him and had jumped him and his codefendant, physically throwing them out the door of the diner. Rydstrom testified that he fought back in self-defense and that Gentile grabbed Detective Sisino's badge case off the ground as he ran away, without knowing what it was. The jury convicted both defendants of the robbery of Detective Sisino's badge and of assaulting Sisino during the commission of the robbery, causing physical injury. Both of the defendants were, however, acquitted of the other assault charges.

Although in the exercise of our review function we will not lightly overturn a jury verdict which is based on an assessment of the relative credibility of witnesses and the weight to be accorded to the evidence presented (see, People v. Rodriguez, 72 A.D.2d 571, 421 N.Y.S.2d 10). If we find from the entire record, as we do here, that the evidence is insufficient in quality and quantity to justify the verdict, we must set it aside (see, CPL 470.15[5]; People v. Santos, 38 N.Y.2d 173, 379 N.Y.S.2d 41, 341 N.E.2d 554; People v. Carter, 63 N.Y.2d 678, 479 N.Y.S.2d 1052, 468 N.E.2d 714). At the trial herein, Detective Sisino claimed that he felt Gentile take the badge out of his pocket. However, on the night of the incident, Sisino did not report that he had been robbed when questioned by investigating Officer Baker, whose complaint report described the incident as a third degree assault. Furthermore, there was testimony from the police witnesses that a search for the badge was conducted on the night of the incident both inside and outside the diner and at Sisino's apartment. Had Sisino's badge been physically taken from his person, as he claimed at the trial, there would have been no reason to search for it. We also find the description of how the theft allegedly occurred to be implausible in that Sisino claimed he was lying on his back when Gentile reached into his back pocket and removed the badge. We further find the evidence indicating that the badge was lost by Sisino during the fight, rather than having been stolen by Gentile, to be so persuasive and so inconsistent with Sisino's testimony that it suffices to raise a...