People v. Johnson

• Decision Date: 28 July 1980
• Citation: 430 N.Y.S.2d 152,77 A.D.2d 666
• Parties: The PEOPLE, etc., Appellant, v. Roberto JOHNSON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 152

430 N.Y.S.2d 152

77 A.D.2d 666

The PEOPLE, etc., Appellant, v. Roberto JOHNSON, Respondent.

Supreme Court, Appellate Division, Second Department.

July 28, 1980.

Eugene Gold, Dist. Atty., Brooklyn (Julian L. Kalkstein, Asst. Dist. Atty., Brooklyn, of counsel), for appellant.

William E. Hellerstein, New York City (Henry Winestine, New York City, of counsel, John Van Der Tuin, New York City, on the brief), for respondent.

Before TITONE, J. P., and MANGANO, GIBBONS and MARTUSCELLO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Kings County, dated November 19, 1979, which granted defendant's motion to set aside the jury's verdict finding him guilty of criminal possession of a weapon in the third degree, and to dismiss the indictment.

Order reversed, on the law, jury verdict reinstated and case remanded to Criminal Term for the imposition of sentence.

At the end of the People's case, defendant moved to dismiss for legal insufficiency and for failure of the People to prove his guilt beyond a reasonable doubt. Although the court reserved decision at the time on this motion, at the end of the entire case this motion to dismiss was denied.

At the conclusion of the entire case, the defendant moved for a trial order of dismissal on the grounds that the People had not proved their case beyond a reasonable doubt and that the testimony of the police officers who testified for the People was incredible. The trial court reserved decision on this motion and, after the jury had returned a verdict of guilty as charged, the court granted the motion upon the ground that it was against the weight of the evidence and that the People had not met their burden of establishing the guilt of the defendant by proof beyond a reasonable doubt. The court stated that its ruling was based on serious discrepancies between Officer Green's testimony at the pretrial hearing and at the trial "particularly in regard to his entrance into the premises in question where he stated initially that the door was open and he entered".

The granting of the motion was error for the following reasons: The testimony of the arresting officer, David Green, that he saw the defendant drop a gun into a waste receptacle while facing him is not incredible as a matter of law. Any inconsistency between the testimony of Officer Green and his companion officer, Vincent Roberts, as to how they initially entered the store through whose window they observed one Carl Spivey, a friend of the defendant, rolling a marijuana cigarette, is immaterial, Criminal Term having found that there was probable cause to investigate further, to enter and to make an arrest.

Officer Green stated...