People v. McCullers

• Decision Date: 21 November 1972
• Citation: 40 A.D.2d 796,338 N.Y.S.2d 63
• Parties: The PEOPLE of the State of New York, Respondent, v. Ronald McCULLERS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 63

338 N.Y.S.2d 63

40 A.D.2d 796

The PEOPLE of the State of New York, Respondent, v. Ronald McCULLERS, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Nov. 21, 1972.

G. S. Stone, New York City, for respondent.

S. Levenberg, New York City, for defendant-appellant.

Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, MURPHY and CAPOZZOLI, JJ.

PER CURIAM.

Judgment, Supreme Court, Bronx County, rendered on May 7, 1971, convicting defendant-appellant upon his plea of guilty of robbery in the third degree, for which an indeterminate sentence with a four year maximum was imposed, affirmed.

June 22, 1970, one Bush, a taxicab driver, was robbed at knifepoint by two men. Warley, one of the perpetrators, was arrested immediately. The other man escaped. As a result of information received Patrolman Finnerty went to an apartment occupied by one Boone. After knocking the door was opened by Boone who stated that he was alone in the apartment and closed the door immediately. However, the officer had observed defendant, who fit the description, hiding behind a door. The officer knocked again, inquired who was the person he had observed, took defendant into custody, and to the precinct house.

At the station house, when asked if he could identify defendant as one of the perpetrators, Bush replied, according to Finnerty, 'That he couldn't be absolutely positive but that it did look like the man, but he can't be sure because he didn't have the jacket on. He was wearing a maroon jacket.'

Finnerty returned to the Boone apartment where Boone informed him that defendant, shortly prior to Finnerty's first visit, had arrived at the apartment, without his shoes, claiming to have been the victim of an attempted holdup. This was corroborated by Boone's father who had been in the apartment at the time. Boone delivered to the officer a maroon jacket, a knife and money found in a basket in the kitchen. Boone accompanied the officer to the station house at which time, according to Finnerty, Warley, who earlier had implicated Boone, stated that in fact it was his brother, this defendant, who was the other participant in the crime. However, before Finnerty returned to the station house, this defendant had been allowed to leave.

November 3, 1970, Patrolman Finnerty finally located and arrested this defendant, who confessed to the crime. He communicated with Bush telling Bush he had arrested the second perpetrator who was the same person earlier arrested on June 22, 1970. Sometime later Bush signed a long form complaint, then entered the courtroom where he waited until defendant was brought in by the officer for pre-arraignment.

A combined Wade and Huntley hearing was held April 14, 1971, at which time Bush testified and fully identified defendant as the second perpetrator. Bush's testimony was to the effect that the two robbers used his cab for about 45 minutes, the co-defendant Waverly leaving the cab for brief periods on three occasions, that he had ample opportunity to observe this defendant and conversed with him. The witness testified that he was excited when he viewed defendant on June 22, 1970, and was not 100% Sure because the holdup man had been wearing slacks and a maroon jacket. But when the witness saw the defendant on November 23 at the pre-arraignment he was able to say positively defendant was the man.

Defendant's motion to suppress the identification testimony was denied.

On this appeal defendant urges (1) his motion to suppress an in-court identification was improperly denied, because the two pre-trial identifications were so suggestive as to deny him due process of law; (2) that since the codefendant received a maximum of three years, and defendant a maximum of four years, defendant was penalized for exercising his right to a pre-trial hearing.

On the second point the defendant received no greater sentence than it was understood he would receive. He cannot now complain, because a promise was kept. As to the pre-trial identifications, the People, while contending such identifications were not unduly suggestive, agreed, at the conclusion of the hearing, not to offer the pre-trial identifications into evidence. The right was reserved to present in-court identification, contending that Bush's observations at the time of the robbery...