People v. Pena

• Decision Date: 10 June 1980
• Parties: , 406 N.E.2d 1347 The PEOPLE of the State of New York, Respondent, v. Joseph PENA, Appellant. The PEOPLE of the State of New York, Respondent, v. Harry TURRELL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 410

429 N.Y.S.2d 410

50 N.Y.2d 400, 406 N.E.2d 1347

The PEOPLE of the State of New York, Respondent, v. Joseph PENA, Appellant.

The PEOPLE of the State of New York, Respondent, v. Harry TURRELL, Appellant.

Court of Appeals of New York.

June 10, 1980.

Lawrence J. D. Mort, New York City, for Joseph Pena, appellant Robert Bergen and William E. Hellerstein, New York City, for Harry Turrell, appellant

Eugene Gold, Dist. Atty. (Alan D. Rubinstein, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

Appellants Harry Turrell and Joseph Pena stand convicted, after a trial by jury, of robbery in the first degree and criminal possession of stolen property in the third degree, both arising out of the robbery of 16-year-old Anthony Irons.

Their convictions having been affirmed by the Appellate Division, each defendant now raises the claim that the proof was insufficient to convict him of first degree robbery, which, under the theory charged in the indictment, involves the use or threatened immediate use of a dangerous instrument (Penal Law, § 160.15, subd. 3). Despite Turrell's express threats to shoot the victim, no weapon was observed during the course of the robbery; in view of these circumstances, appellants maintain that it could not be found that a knife later seized from Pena played any role in the crime. In addition, both defendants assign as error the trial court's refusal to allow cross-examination of the arresting officer on the subject of the complainant's confidential youthful offender adjudication. They further complain of errors in the charge, particularly on the availability of trial testimony to aid the jury in its deliberations. Finally, Pena alone contends that he was penalized for exercising his right to a trial when the trial court imposed a more severe sentence than he had been promised in the context of an unconsummated plea bargain. For the reasons that follow, we find each of appellants' arguments unpersuasive.

The facts are uncomplicated. After an initial brief encounter during which Turrell and Pena apparently sought to determine whether Irons had any drugs, the two men followed him into a nearby park, and, upon approaching the bench where he was seated, Turrell asked him for money. Irons surrendered what little he possessed, whereupon Turrell thrust his arm, with its hand enclosed in a brown paper bag, towards Irons, who later was to testify it "looked like there was a gun in it", and threatened, "See, if you run, I'll shoot you". Pena, meanwhile, instructed Irons to remove his coat, telling the boy that it would be returned if he were to hand over $10 to Turrell. Before the two departed, Turrell added that if Irons called the police he would be killed.

Irons nevertheless promptly summoned the police and, when they arrived, joined them in the search for the robbers. After driving around for a short time, Irons sighted both Turrell and Pena standing on a street corner three blocks from the park in which he had been accosted. Pena was wearing the complainant's coat and holding in his hand a brown paper bag of the type employed in the robbery and which, upon his arrest, was found to contain a knife. At the trial, in which the People's case was developed through Irons and the arresting officer, both the paper bag and the knife were introduced as evidence.

These facts before us, we treat first with the alleged insufficiency of proof. Doing so, we observe that, in the circumstances of this case, the issue narrows down to whether the People met their burden of proving that Turrell possessed and employed a "dangerous instrument" when he and Pena divested young Irons of the currency and the coat. Because Irons testified that he did not actually observe the weapon within the paper bag with which Turrell menaced him at the time of the commission of the robbery, proof of this element of the crime was dependent on circumstantial evidence. While the proof, in light of the affirmance at the Appellate Division, must now be viewed most favorably to the People, its sufficiency must be assessed in terms of whether the inferences which the jury must have drawn in order to convict are to be found in the evidence adduced at trial (People v. Piazza, 48 N.Y.2d 151, 158-159, 422 N.Y.S.2d 9, 397 N.E.2d 700; People v. Kennedy, 47 N.Y.2d 196, 202-203, 417 N.Y.S.2d 452, 391 N.E.2d 288). That means that the foundation for the finding of guilt may not be based on conjecture or suspicion but on facts and inferences which "common human experience would lead a reasonable man, putting his mind to it, to * * * accept" (People v. Wachowicz, 22 N.Y.2d 369, 372, 292 N.Y.S.2d 867, 869, 239 N.E.2d 620, 622; People v. Castillo, 47 N.Y.2d 270, 277, 417 N.Y.S.2d 915, 391 N.E.2d 997).

Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, § 160.15, subd. 3), ¹ the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894). ² To that end, the prosecutor's voluntary disclosure form and his argument at the trial made clear that the People were proceeding upon the theory that the concealed weapon with which Turrell exercised duress on Irons was the knife later found in his accomplice Pena's possession. As we analyze the record, the jury indeed could have found this the most natural inference to be drawn.

Only about 20 minutes and several city blocks separated the defendants from the time and scene of the crime when they were apprehended. Pena was then holding a knife inside a brown paper bag similar in appearance to the one which Irons had so recently seen in Turrell's possession. That Turrell's verbal threat was to shoot Irons rather than to stab him did not necessarily negate the inference that the knife was, in actuality, the dangerous weapon then utilized by the robbers. It is conceivable that a mugger, relying on a knife to support his depredations, may nevertheless find it convenient to advantage himself of the fact that his weapon was masked, as it was by the bag in this case, to allow him to discourage his victim from any attempt to flee with the suggestion, founded or not, that escape would be intercepted by a bullet. Furthermore, the "threaten(ed) immediate use" of a dangerous instrument to which subdivision 3 of section 160.15 speaks requires no correspondence between the content of any verbal threat and the instrumentality behind it. The "use" or "threaten(ed) immediate use" need not be accompanied by any statement. For example, the brandishing of a weapon might be enough. So would a display of what appears to be a firearm (Penal Law, § 160.15, subd. 4). It therefore sufficed, if found by the jury that a threat brought home, as in this case, by Turrell's thrusting his hand, which held the concealed instrument, toward the victim, in fact represented the imminent use of force by means of an instrument "readily capable of causing death or other serious physical injury" (Penal Law, § 10.00, subd. 13; see People v. Woods, 41 N.Y.2d 279, 283, 392 N.Y.S.2d 400, 360 N.E.2d 1082).

True, there was no direct evidence that Turrell and Pena had exchanged possession of the bag or knife during the brief period between the robbery and their arrest. And, concededly, at trial Irons could not say for certain whether the bag found in Pena's hands was the very same one he observed in Turrell's. But the Trial Judge was both correct and realistic in demanding no more positive identification as a predicate for the admission into evidence of the bag found on Pena than that it "looked like" the one Irons had seen on Turrell (see People v. Mirenda, 23 N.Y.2d 439, 453, 297 N.Y.S.2d 532, 245 N.E.2d 194 (eyeglasses "resembled"); People v. Miller, 17 N.Y.2d 559, 268 N.Y.S.2d 324, 215 N.E.2d 507 (guns "look like"); People v. Randolph, 40 A.D.2d 806, 338 N.Y.S.2d 229 (gun "like the one"); Fisch, New York Evidence (2d ed), § 133, p. 77). Midst the surrounding circumstances this was sufficient to permit the jury to find, as it apparently did, that the bag was the one used in the commission of the crime.

That it would also have been possible for it to reach a contrary conclusion is no answer. As on all issues which stand or fall on circumstantial evidence "A choice between competing inferences, as a choice between competing facts, is available to the trier of facts so long as the one arrived at is found beyond a reasonable doubt" (People v. Castillo, 47 N.Y.2d 270, 277, 417 N.Y.S.2d 915, 920, 391 N.E.2d 997, 1001, supra; see People v. Bracey, 41 N.Y.2d 296, 302, 392 N.Y.S.2d 412, 360 N.E.2d 1094). So too, at this stage of the litigation, it is enough that, though it was possible to draw the inference that either Pena or Turrell in the short span between crime and capture had somehow obtained and placed a knife in the brown paper bag, or the inference that the knife was in it when the threat was delivered, taking "the whole complex of interrelated information" which was presented (People v. Kennedy, 47 N.Y.2d 196, 201, 417 N.Y.S.2d 452, 455, 391 N.E.2d 288, 291, supra ), the jury was entitled to discount the former inference as an unreasonable one (People v. Bracey, supra ). In all, we cannot say that a prima facie case was not...