People v. Kidd

• Decision Date: 11 September 1980
• Citation: 76 A.D.2d 665,431 N.Y.S.2d 542
• Parties: The PEOPLE of the State of New York, Respondent, v. Anthony KIDD, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 542

431 N.Y.S.2d 542

76 A.D.2d 665

The PEOPLE of the State of New York, Respondent, v. Anthony KIDD, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Sept. 11, 1980.

Nancy S. Hobbs, New York City, of counsel (William E. Hellerstein, New York City, atty.), for defendant-appellant.

Laurence J. Lebowitz, Asst. Dist. Atty., of counsel (Billie Manning, Asst. Dist. Atty., with him on brief; Mario Merola, Dist. Atty., atty.), for respondent.

Before ROSS, J. P., and MARKEWICH, SILVERMAN, BLOOM and CARRO, JJ.

SILVERMAN, Justice.

Defendant appeals from a judgment of the Supreme Court, Bronx County, convicting him, after jury trial, of robbery in the second degree, and sentencing him thereon to an indeterminate term of imprisonment of three to nine years.

The robbery falls into a depressingly familiar pattern-a robbery of a woman in the hallway of her apartment house by two unknown men, one of them alleged to be defendant.

This is a one witness identification case. The complaining witness saw the defendant on the street two days after the robbery and recognized and identified him as one of the robbers on that occasion. Her opportunity to observe the robbers, and particularly the one whom she identified as the defendant, while somewhat fleeting, was legally adequate. The evidence of guilt was thus legally sufficient.

But there are seriously troublesome aspects of the case. There are many inconsistencies with respect to the identification and the police record that was made as to the ability of complainant to identify the defendant at the time. The defendant, as we said, was recognized on the street by the complaining witness two days after the incident; he remained where he was in the street until the police picked him up although the complaining witness had obviously and noticeably stopped to take a close look at him. There was alibi evidence. The defendant's previous record is extremely minor and equivocal, if not insignificant. He has a relatively stable family relationship (although not legally married to the woman he is living with). He was working on a job which required him to get up very early in the morning so that it made it unlikely that he would leave his home at midnight in the middle of his usual sleep time to go out and commit this crime. The defendant also has a history of institutionalization as mentally retarded.

We are clear that the evidence is legally sufficient; and we cannot say that the verdict is against the weight of the evidence in the accepted legal sense. We recognize that the determination of guilt is for the jury, which has not only the legal responsibility to do this, but has the advantage of seeing and hearing the witnesses, which we have not.

Nevertheless, we are left with a disturbing feeling of a grave risk that an innocent man has been convicted. What then are our powers in such a case?

We are authorized by statute to reverse or modify a judgment of conviction "as a matter of discretion in the interest of justice," CPLR § 470.15 subd. 3. While examples of this power are given in the statute, it is expressly stated that such determinations are "not limited" to the examples given, CPL § 470.15 subd. 6.

No doubt our powers of review "in the interest of justice" are extremely broad. On the other hand, we must guard against being capricious and whimsical, affirming when we feel like it, and reversing when we feel like it. A judge "is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness" (Cardozo, Nature of the Judicial Process, quoted in People v. Shepard, 50 N.Y.2d 640, 431 N.Y.S.2d 363 at 366, 409 N.E.2d 840 at 843). But we think we do not overstep the line when we exercise our "interest of justice" powers on the basis of so fundamental a consideration as guilt or innocence.

We note that the corresponding English statute permits the Court of Appeal, Criminal Division, to quash a conviction "if they think . . . that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory . . . ." Criminal Appeal Act 1968, § 2(1)(a), R. v. Cooper, (1969) 1 All E.R. 32; Meador Criminal Appeals (1973) (The University Press of Virginia) 90; Thompson and Wollaston, Court of Appeal, Criminal Division, 119-20 (1969).

In People v. Ramos, 33 A.D.2d 344, 308 N.Y.S.2d 195, defendant was convicted, by jury verdict, of robbery in the first degree while armed with a dangerous weapon. Under the statute as it then read, a prison sentence was mandated. However, the trial court being "of the firm opinion" that defendant was innocent imposed a suspended sentence. An Article 78 proceeding was brought to annul that suspension; the suspension was annulled and the matter was remanded for resentence. The trial judge thereupon, reiterating his view that the defendant was innocent, imposed a sentence in accordance with the statute. On appeal, this Court reversed and ordered a new trial saying:

Certainly, we may assume that, for reasons best known to himself, the Trial Judge was of...