People v. Rhem
| Decision Date | 28 June 1965 |
| Citation | 261 N.Y.S.2d 808,24 A.D.2d 517 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Floyd RHEM, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Aaron E. Koota, Dist. Atty. of Kings County, Brooklyn, for respondent People; William I. Siegel, Brooklyn, of counsel.
Anthony F. Marra, New York City, for appellants; Patrick M. Wall, New York City, of counsel.
Before CHRIST, Acting P. J., and HILL, RABIN, HOPKINS and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant: (1) from a judgment of the Supreme Court, Kings County, rendered November 8, 1962 after a jury trial, convicting him of robbery in the first degree, grand larceny in the first degree, and assault in the second degree (three counts) and imposing sentence; and (2) from an order of said court entered October 15, 1964 upon reargument, which adhered to its original decision denying without a hearing the defendant's coram nobis application.
Judgment affirmed.
Order reversed, and coram nobis application remanded to the Supreme Court, Kings County, Criminal Term, for a hearing and for further proceedings not inconsistent herewith.
The defendant accosted the victim in the vestibule of his apartment building, took hold of the victim's clothing and demanded money. Upon receiving the victim's empty wallet and $1.35 in coin, the defendant produced a knife and stabbed the victim in the abdomen. The defendant contends that his conviction of the crime of robbery in the first degree cannot be sustained under subdivision 1 of section 2124 of the Penal Law because he was not armed with a dangerous weapon at the time of the robbery.
Subdivision 1 of section 2124 of the Penal Law is violated if a defendant possesses a dangerous weapon during the commission of a robbery. This subdivision is directed at those persons who, in the course of a robbery, possess the actual ability to inflict serious injury. It is not concerned with the apparent ability of the defendant to inflict such injury (People v. Caruso, 249 N.Y. 302, 305, 164 N.E. 106, 107; People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573; People v. Dade, 15 A.D.2d 629, 222 N.Y.S.2d 154; People v. King, 13 A.D.2d 997, 216 N.Y.S.2d 755). In any event, the jury could properly have found that the assault had not yet terminated when the weapon was produced (cf. People v. Smith, 232 N.Y. 239, 133 N.E. 574). We have considered defendant's other allegations of error and find them to be without merit.
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People v. Hunter
... ... the cross-examiner's question is privileged from disclosure and that he or she may either waive the privilege and consent to answer the questions or may refuse to waive it, in which event the jury must be instructed to disregard the questions (see People v. Rhem, 24 A.D.2d 517, 518, 261 N.Y.S.2d 808). Only the witness may claim the benefit of the privilege, and where, as here, that witness is not the defendant himself, the latter may not assert it on his or her behalf (see 8 Wigmore, Evidence § 2196). The rule requiring that confidentiality of such ... ...
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