People v. Rivera
| Decision Date | 18 January 1990 |
| Citation | 549 N.Y.S.2d 728,157 A.D.2d 540 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Carlos RIVERA, a/k/a Orlando Rivera, a/k/a Orlando Rodriguez, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. Freudenheim, New York City, for respondent.
H.W. Turkel, New York City, for defendant-appellant.
Before KUPFERMAN, J.P., and ASCH, KASSAL, WALLACH and RUBIN, JJ.
Judgment of the Supreme Court, New York County (John C. Leonforte, J.), rendered March 25, 1983, convicting defendant, after a trial by jury, of one count of Attempted Murder in the Second Degree, two counts of Robbery in the First Degree, one count of Robbery in the Second Degree, and two counts of Criminal Possession of a Weapon in the Second Degree, and sentencing him, as a second felony offender, to three concurrent terms of 12- 1/2 to 25 years for the attempted murder and for each first degree robbery count and two concurrent terms of 7- 1/2 to 15 years for the second degree robbery count and one of the second degree criminal possession of a weapon counts and a consecutive term of 7- 1/2 to 15 years for the other second degree weapons possession count, is unanimously affirmed.
Seventeen-year-old Thomas Selby offered to sell a Polaroid camera to defendant, whom he knew from the area. After defendant asked to see the camera and handed it to a companion, he pulled out a revolver and pointed it at Selby. When Selby took refuge behind a parked car, defendant fired a shot at him and then ran off with his companion. After reporting the robbery to the police, Selby again saw defendant in the neighborhood about one half-hour after the first confrontation. When defendant in turn saw Selby, he chased him, with the same gun in his hand, for about two blocks, firing two more shots at him. About 13 hours later, in response to a call, police were sent to apprehend defendant, and observed him emerging from a rear window onto the fire escape of the building they had staked out. After identifying himself, an officer told defendant not to move and to drop the gun he was holding. Defendant, instead, pointed the gun at the officer before withdrawing back into the apartment, where he was arrested.
Defendant claims that the fifth count of the indictment was duplicitous since it covered two separate times at which he actually possessed a revolver with intent to use it unlawfully against Selby. In addition, defendant asserts the court "cured" the alleged defect in its charge to the jury that count five pertained to the "claimed possession of a weapon at the time of the alleged robbery" and count six pertained to "the alleged possession of a weapon at or about the time of defendant's arrest". He also contends this constituted an illegal amendment of the indictment. Defendant further claims that the second degree attempted murder count was duplicitous because an attempt to murder Selby was made at two distinct times and, also, that all three counts were not specific enough.
Initially, we note that defendant never moved to dismiss the indictment on the grounds advanced...
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