People v. Joyiens

• Decision Date: 06 April 1976
• Citation: 347 N.E.2d 621,39 N.Y.2d 197,383 N.Y.S.2d 259
• Parties: , 347 N.E.2d 621 The PEOPLE of the State of New York, Respondent, v. Kim JOYIENS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 259

383 N.Y.S.2d 259

39 N.Y.2d 197, 347 N.E.2d 621

The PEOPLE of the State of New York, Respondent, v. Kim JOYIENS, Appellant.

Court of Appeals of New York.

April 6, 1976.

Sidney G. Sparrow, Kew Gardens, for appellant.

Nicholas Ferraro, Dist. Atty. (Joseph R. Onorato, Kew Gardens, of counsel), for respondent.

COOKE, Judge.

Two New York City policemen, Patrolmen Scarabino and Rollins, were standing on Westgate Avenue near a call box at the intersection of that thoroughfare and Farmers Boulevard in the Borough of Queens. It was August 26, 1970, a bit before midnight. Both were on foot patrol, working adjoining 'posts', and had come to make scheduled rings at the call box which was found to be temporarily out of order. While there and only a few inches apart, they were approached from behind by three men walking south on Farmers Boulevard who, without uttering a word, opened fire. In the ensuing shoot out, the two officers were wounded and hospitalized and one of the men, Harvey Nobles, was killed.

On November 8, 1971, appellant Kim Joyiens, along with his brother Paul, were indicted for attempted murder, two counts of assault in the first degree and possession of a dangerous weapon as a felony. Upon trial, during which defendants denied complicity, a verdict was rendered finding Kim Joyiens guilty on all four counts and Paul Joyiens not guilty in all respects.

On trial, Scarabino was 'absolutely positive' in identifying Kim Joyiens as one of the assailants. He testified: that the lighting conditions were very good, a street lamp being connected to the same pole as the call box; that, as he turned around, Nobles and appellant, who were abreast, drew revolvers and started firing at the officers; that the attackers were then about 12 to 15 feet away; that he first shot at Nobles and then once or twice at appellant until he hit the latter; that appellant dropped and moved 'back more or less with his left', twitching his head backward toward the left; that when appellant fired, he faced directly toward Scarabino; that when he, Scarabino, was hit he kept on firing; that upon being hit, Nobles ran to the pole and stopped to reload, whereupon Rollins shot Nobles; that when Scarabino's gun malfunctioned, he hit Nobles with his radio and Nobles went down; that appellant fired over a brick wall estimated to be three and a half to four feet high; that he, Scarabino, got a good look at the assailants and, that as appellant shot at him, he was looking right at his face; that the incident took two to three minutes; and during this time he, Scarabino, kept the attackers in view. Scarabino described appellant as probably 5 feet 10 or 11 inches in height and that he had an Afro-style haircut, which to him meant 'raised up above his skull' and not 'flat to his head'.

Patrolman Rollins related that the light on the pole where he and his fellow officer stood was in good condition; that they were approached from behind by the three perpetrators who began firing; that he was shot just as Scarabino yelled something; that the first round of fire went into his left shoulder; that as he turned around he was hit in his left jaw; that he dropped to his knees and fired at Nobles until Nobles stopped firing; that he ran to a house for assistance; and that he was then rushed by police car to a hospital. Dr. Ghassemi, an attending surgeon at the hospital to which Rollins was taken, found a wound of the chest and face, with gunpowder surrounding the latter, same being indicative of a close shot.

Proof was received indicating that on July 6, 1970, appellant, as a prospective employee of a broadcasting system, was physically examined. The report of this examination contained no positive findings or any record of significant scarring. The examining physician stated he would not ordinarily make a notation of a scar unless it was of a very unusual nature or disabling as far as work was concerned. Upon disrobing to the waist in the courtroom, appellant was found to have a linear scar an inch and one-half in length above the left nipple which could have come from a superficial laceration but as to which the doctor could not ascribe the cause with medical certainty. There were also found two elevated round keloid scars, each about a centimeter in length in the left scapula area, and two flat scars on the back. Dr. Gold could not remember whether these scars on the left shoulder were present upon his examination in July of 1970. He stated that they could have been a year and a half old, as well as of other ages, and that they could have come from a bullet and were also consistent with shrapnel. He stated that he would have made a note of it had appellant told him that the scarring was the result of a shrapnel wound.

On June 26, 1971, Detective Newbeck showed a series of photographs to Scarabino who picked out one of appellant. Two days later, the detective arrested appellant. Newbeck observed on him scars at the front, the left and the back of his left shoulder, the ones at the front and back...