People v. Peterson

• Decision Date: 10 January 1966
• Citation: 266 N.Y.S.2d 884,25 A.D.2d 437
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank PETERSON and Kenneth G. Cender, Appellants
• Court: New York Supreme Court — Appellate Division

Page 884

266 N.Y.S.2d 884

25 A.D.2d 437

The PEOPLE of the State of New York, Respondent, v. Frank PETERSON and Kenneth G. Cender, Appellants.

Supreme Court, Appellate Division, Second

Jan. 10, 1966.

Anthony F. Marra, New York City, for appellants; William Bennett Turner, New York City, of counsel.

John M. Braisted, Jr., Dist. Atty., St. George, for respondent; Ralph Di Iorio, St. George, of counsel.

Before CHRIST, Acting P. J., and BRENNAN, HILL, RABIN, and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendants from judgments of the Supreme Court, Richmond County, rendered November 4, 1964 after a jury trial, convicting each of them of eight counts of Robbery in the first Degree (Armed), and imposing sentences.

As to defendant Kenneth Cender, Judgment affirmed. As to defendant Frank Peterson, judgment reversed on the law and the facts and in the interests of justice and a new trial granted.

On January 18, 1964 three masked men armed with a rifle, shotgun and starter's pistol entered a bar and robbed its owners and customers after having handcuffed them in a basement kitchen. Appellants, together with one Stephen Cender, were jointly indicted for the robberies. Although when arrested on January 22, 1964 Stephen Cender was concedely found in possession of a watch taken from one of the robbery victims, the jury was unable to reach a verdict concerning him. Upon appellants' trial the People sought to establish their guilt principally by means of identification witnesses, evidence showing appellant Kenneth Cender's purchase and possession of the rifle and shotgun, and appellant peterson's allegedly recanted confession.

In the case of appellant Cender, one wholly unimpeached witness, Dominick Carbonari, positively identified Cender, who was equally identified by the witness James Laurie. In addition, proof was given that, on January 17, 1964, appellant Cender purchased a 12-gauge shotgun and Italian rifle identified as the types of weapons used by the robbers. Although the seizure of the shotgun and fifle was made under circumstances suggesting an unlawful search, no motion to suppress was made and, consequently, appellant Cender's constitutional objection was waived (Code Crim.Pro., § 813-d). In our opinion, a police artist's sketch based upon descriptions received from the two owners of the bar was properly received in evidence. Although such a sketch has been held to constitute hearsay (People v. Coffey, 11 N.Y.2d 142, 227 N.Y.S.2d 412, 182 N.E.2d 92; but cf., Eye-Witness Identification in Criminal Cases, pp. 177-179), appellant Cender's cross-examination of the bar owners, as well as the cross-examination conducted by defendant Stephen Cender, invited the jury to believe that the trial identifications of him had their common source in pretrial meetings between them and the People's prosecutor during which the prosecutor showed them appellant Cender's photograph, together with other evidence. Under such circumstances, it was open to the People to show by means of a prior consistent statement (the sketch) that, at a time when neither witness had made a photographic identification of appellant Cender, they had nevertheless identified him (cf. People v. Jennings, 23 A.D.2d 621, 257 N.Y.S.2d 456). Assuming, however, that it was error to receive the sketch in evidence, we think that the error was insubstantial (Code Crim.Pro § 542) because, upon the trial, neither bar owner was able to go beyond testifying that a 'facial resemblance' existed between appellant Cender and a customer who had left bar prior to the robberies and may have returned as one of the robbers. In view of appellant Cender's history of demonstrated criminality and the nature of the crimes at bar, we do not regard his sentence as...