People v. Oliver

• Citation: 163 N.Y.S.2d 235,4 A.D.2d 28
• Parties: The PEOPLE of the State of New York, Respondent, v. Lester OLIVER, Defendant-Appellant.
• Decision Date: 15 May 1957
• Court: New York Supreme Court Appellate Division

Page 235

163 N.Y.S.2d 235

4 A.D.2d 28

The PEOPLE of the State of New York, Respondent, v. Lester OLIVER, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

May 15, 1957.

John T. Delaney and Franklin P. Gavin, Albany, for defendant-respondent.

George N. Meyl, Dist. Atty., Albany County, Albany (Condon A. Lyons, Asst. Dist. Atty., Albany, of counsel), for respondent.

Before FOSTER, P. J., and BERGAN, COON, HALPERN, and GIBSON, JJ.

GIBSON, Justice.

Defendant appeals from a judgment convicting him of the crimes of burglary in the first degree and assault in the third degree. The complaining witness, Mrs. Jane Sickinger, while living alone in an apartment, was awakened at about 2:30 a.m. and heard knocking on her door. She went to the door, opened it about an inch and saw standing there a man who said, 'I am going to talk to John', and thereupon, as he pushed the door open, 'lunged' for her throat. He choked her, as she 'scratched him and clawed him', until she slumped to the floor. He then left. Apparently there was no one named John in the building and the motive for the assault remains unexplained.

Defendant attacks the sufficiency of the count of the indictment which accuses him 'of the crime of Burglary in the First Degree in violation of Section 402--Subdivision 4 of the Penal Law of the State of New York, committed as follows: The defendant in the City and County of Albany, New York, on or about the 14th day of January, 1954, with intent to commit therein the crime of Assault in the Second Degree, broke and entered the dwelling house of Jane Sickinger, there being therein at the time a human being, and while engaged in effecting such entrance as aforesaid did assault the said Jane Sickinger.' By the first paragraph of said section 402, breaking and entering 'in the night time' is made an element of the crime and the applicable provisions of subdivision 4, specified in the indictment, refer to an assault by a person 'while engaged in the night time in effecting such entrance'.

It is contended that the omission from the indictment of the words 'in the night time' was fatal. We hold to the contrary. As we said in People v. Rosen, 251 App.Div. 584, 587, 297 N.Y.S. 877, 881, affirmed 275 N.Y. 627, 11 N.E.2d 790: 'The indictment need not set forth all the elements of the crime. Sections 284, 285, 295-b, 295-c, 295-h, Code of Criminal Procedure.' The defendant asserts, however, that sections 295-g and 295-h providing for a bill of particulars to supply the elements not pleaded are applicable only to the simplified form of indictment authorized by chapter III-A of which these sections are part, and that when the so-called long form is employed, all the elements of the crime must be pleaded. However, that contention was advanced and expressly rejected in the Rosen case, supra, where, as here, it was the long form of indictment which was in dispute. Although People v. Bogdanoff, 254 N.Y. 16, 24, 171 N.E. 890, 893, 69 A.L.R. 1378, dealt with the simplified form and defendant would distinguish it on that ground, the court seems to have used language of general application in stating: 'The problem of the sufficiency of an indictment assumes a new aspect when the Legislature provides that omissions from an indictment may be supplied by a bill of particulars which becomes part of the record of the accusation.' In this case, counsel states with complete candor that he was aware of the omission and chose not to aid the prosecution in curing it, as might have been the result had he requested particulars as to the hour of the occurrence. Instead, he waited until the time was mentioned, during the district attorney's voir dire examination of a prospective juror, and then for the first time moved to dismiss the indictment. Thus, there is no complaint that defendant was prejudiced (Code Crim.Proc. § 285) and from the specific references in the indictment to section 402 and to subdivision 4 of that section, he must have clearly understood that the commission of a crime in the night time was charged. We consider, further, that if the indictment might be deemed defective in the respect claimed, defendant waived his objection, not, as in People v. Portner, 278 App.Div. 787, 104 N.Y.S.2d 17, by an omission to object to the indictment, but, in a comparable manner, by his deliberate and considered failure to require particularization. It was said in the Bogdanoff case, supra, 254 N.Y. at page 31, 171 N.E. at page 895 with reference to a possible failure to request a bill of particulars, that '* * * a voluntary failure to assert a right provided by statute constitutes a weak foundation for a claim that the statute deprives the accused of a constitutional right.' The principle is equally applicable to the claim of deprivation of right here interposed as to the form of the indictment.

Defendant disputes the suficiency of the evidence of identification. He was positively identified by Mrs. Sickinger and by the testimony of her neighbor, Miss Wolf, who saw the back of the intruder's head, his hair, his 'general figure' and his clothing, as he descended the stairs after leaving Mrs. Sickinger's apartment. When apprehended, the defendant had scratches upon his hands and was wearing a zipper jacket such as Mrs. Sickinger had described as worn by her assailant. The weight of the evidence of identification was for the jury (People v. Spinello, 303 N.Y. 193, 203, 101 N.E.2d 457, 461; People v. Trybus, 219 N.Y. 18, 20, 113 N.E. 538, 539) and we are unable to say that the surrounding circumstances rendered it incredible.

Defendant urges the absence of proof that the breaking and entering were with intent to commit the crime of assault. As defendant pushed the door open he 'lunged' at Mrs. Sickinger's throat and assaulted her. From these and the other circumstances an intent existing at, if not before, the instant of the entry, was properly inferable. See People v. Chiaro, 200 N.Y. 316, 319, 93 N.E. 931, 932.

There were errors in the reception of evidence. It was improper to permit a police officer who came to Mrs. Sickinger's apartment a few minutes after the assault to testify to her description of her assailant. People v. Deitsch, 237 N.Y. 300, 142 N.E. 670; Baccio v. People, 41 N.Y. 265. A witness was erroneously permitted to identify defendant as the man brought to Mrs. Sickinger's apartment by police. There was incompetent testimony by four witnesses that at that same time Mrs. Sickinger identified defendant in their presence. 'When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification.' Code Crim.Proc. § 393-b. This statutory exception to the hearsay rule does not extend to the testimony of any person other than the one who made the identification. People v. Cioffi, 1 N.Y.2d 70, 150 N.Y.S.2d 192. This was the holding, also, in People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841, with the result that the trial court's reception of the testimony of a detective as to the complaint's identification of the defendant was accounted error so substantial as to require reversal, despite 'the victim's positive and unequivocal trial identification of defendant' noted in the dissenting opinion (305 N.Y. at page 478, 113 N.E.2d at page 844). What was said in the Trowbridge case as to the exaggerated effect upon the minds of lay persons of numerous repetitions of the fact of a prior identification, thus 'endowing such proof with an undeserved aura of trustworthiness', seems especially appropriate here. Although but a part of the proof was objected to, we feel bound to hold that reversible error occurred in its reception, as the cumulative effect might well have been to cause the jury to give less than fair consideration to the...