People v. Parks
| Decision Date | 01 August 1977 |
| Parties | The PEOPLE, etc., Respondent, v. Gary PARKS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein and William J. Gallagher, New York City (Daniel M. Ross, New York City, of counsel), for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Jane S. Meyers, Brooklyn, of counsel), for respondent.
Before COHALAN, J. P., and DAMIANI, HAWKINS and MOLLEN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 30, 1975, convicting him of kidnapping in the second degree, robbery in the first degree, attempted assault in the first degree, possession of weapons, etc., as a misdemeanor, grand larceny in the second degree and unauthorized use of a vehicle, upon a jury verdict, and imposing sentence.
Judgment modified (1) on the law, by reversing the convictions of kidnapping in the second degree and possession of weapons, etc., as a misdemeanor, and the sentences imposed thereon, and dismissing the counts of the indictment upon which those convictions are based, and (2) on the law and as a matter of discretion in the interest of justice, by reducing the conviction of robbery in the first degree to one of robbery in the second degree. As so modified, judgment affirmed, and case remanded to Criminal Term, for resentence on the conviction of robbery in the second degree.
Defendant-appellant Gary Parks, and a codefendant, were the subjects of a nine-count indictment, charging kidnapping in the second degree, robbery in the first degree (three counts), robbery in the second degree, attempted assault in the first degree, possession of weapons, etc., as a felony, grand larceny in the second degree and unauthorized use of a vehicle.
According to the complainant, Richard Napolitano, appellant and codefendant appeared at his home, posing as prospective buyers for his automobile, which he had advertised for sale. They pulled a gun on him, forced him into the car, and drove away. While driving, appellant and codefendant robbed Napolitano of various items, including more than $1,000 in cash. They then abandoned him on the side of the road, after allegedly firing a shot at him. At the trial the jury, by its verdict, chose to disbelieve that a shot had been fired.
About five days later, appellant and codefendant were arrested in Philadelphia after having been stopped for running a stop sign while in the complainant's car. They were brought back to New York. At 5:00 A.M. on January 22, 1974 complainant received a call from a detective at the local precinct, who told him to come down because "(w)e have two men here we want you to look at." Complainant went to the precinct, where he met the detective. The latter brought him into a room with a one-way mirror and said "I just picked up two guys that were caught driving your car * * * See if these guys could be the guys." Complainant looked through the mirror and saw appellant and codefendant, the only two persons in the room. He recognized them as the two men who had stolen his car. However, when the detective asked him "(a)re those the guys that did it?" complainant said that he did not know. At the trial, he said that he had been afraid to identify them at that time. Complainant did identify them later the same day.
The court denied a defense motion to suppress complainant's in-court identification, finding that it was based upon an independent source, to wit, the face-to-face confrontation between complainant and defendants at the time of the crime. Counsel for codefendant then moved to suppress the precinct identification. Counsel for appellant not only did not join in that motion, he actively opposed it. The court denied the motion on the ground that there was no precinct identification to suppress. After a jury trial, appellant and codefendant were convicted of the aforementioned crimes.
Appellant now advances five arguments to support his contentions that the judgment should be reversed and the indictment dismissed. We deal with them seriatim.
His conviction for kidnapping should be reversed, and the corresponding count of the indictment dismissed, on the ground that the kidnapping merged with the robbery. The People so concede and we agree (see People v. Levy,15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. den. sub nom. Levy v. New York, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701; People v. Cassidy,40 N.Y.2d 763, 767, 390 N.Y.S.2d 45, 47, 358 N.E.2d 870, 872).
The court erred in permitting the prosecution to introduce evidence of complainant's precinct identification. We do not...
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