People v. Green
| Decision Date | 03 April 1980 |
| Citation | 426 N.Y.S.2d 736,75 A.D.2d 502 |
| Parties | The PEOPLE of the State of New York, Respondent, v. George GREEN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
D. L. Irizarry, New York City, for respondent.
J. Phillips, New York City, for defendant-appellant.
Before MURPHY, P. J., and KUPFERMAN, BIRNS, FEIN and MARKEWICH, JJ.
Judgment, Supreme Court, Bronx County, rendered December 7, 1978 convicting defendant on a jury verdict of robbery in the first degree (Penal Law Section 160.15) and sentencing him to an indeterminate term of imprisonment of 121/2 to 25 years, is modified, as a matter of discretion in the interest of justice to the extent of reducing the sentence to an indeterminate term of imprisonment of which the minimum shall be 71/2 years and the maximum shall be 15 years, and the judgment is otherwise affirmed.
Defendant was convicted of robbery in the first degree on the basis of his participation in the knifepoint robbery of one Michael Davis. Davis had known defendant and his brother, the codefendant, for several years. The defense was that Davis imagined the entire crime. Since the proof established that Davis was a paranoid schizophrenic, defendant contends that Davis' testimony was incompetent or incredible by reason of such mental illness. Defendant asserts that Davis' testimony was the only evidence of defendant's participation in the crime. Accordingly, defendant argues the verdict was against the weight of the credible evidence. However, the mere fact that the complainant is mentally ill does not per se render his testimony incompetent or incredible (CPL 60.20, subd. 1; People v. Rensing, 14 N.Y.2d 210, 213, 250 N.Y.S.2d 401, 403, 199 N.E.2d 489, 490). Moreover, there was other compelling evidence negating the contention that the crime was imagined, to wit, Davis' prompt and detailed complaint to the police, defendant's brother's admission to the police that he had participated in the robbery of Davis and the brother's plea of guilty of such robbery. There was ample evidence that Davis was the victim of a robbery.
Defendant contends it was reversible error to admit in evidence his brother's statement to the police that the brother robbed Davis and to receive in evidence a stipulation as to the brother's guilty plea. This evidence was properly received only to establish that Davis was actually robbed and not for the purpose of establishing this defendant's guilt. All references to defendant in the statement and plea were deleted and the court repeatedly and clearly instructed the jury that the statement was received only for the purpose of establishing that Davis was robbed and not for the purpose of establishing this defendant's guilt. The statement was plainly admissible for the purpose offered as a declaration against the brother's penal interest. All criteria for admissibility were met: (1) the unavailability of defendant's brother who had absconded at the time of the trial; (2) the brother's awareness that the...
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