People v. Roraback

• Decision Date: 28 August 1997
• Citation: 662 N.Y.S.2d 327,242 A.D.2d 400
• Court: New York Supreme Court — Appellate Division
• Parties: , 1997 N.Y. Slip Op. 7279 The PEOPLE of the State of New York, Respondent, v. Donald RORABACK, Also Known as Donald Reed, Also Known as Tom Reed, Appellant.

Page 327

662 N.Y.S.2d 327

242 A.D.2d 400, 1997 N.Y. Slip Op. 7279

The PEOPLE of the State of New York, Respondent, v. Donald RORABACK, Also Known as Donald Reed, Also Known as Tom Reed, Appellant.

Supreme Court, Appellate Division Third Department.

Aug. 28, 1997.

Susan Bloch Marhoffer, Windham, for appellant.

Stephen F. Lungen, District Attorney (Bonnie M. Mitzner, of counsel), Monticello, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and CARPINELLO, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered October 6, 1995 in Sullivan County, upon a verdict convicting defendant of the crimes of robbery in the first degree, burglary in the first degree, burglary in the second degree, grand larceny in the third degree and petit larceny.

Defendant was indicted and, following a jury trial, convicted of robbery in the first degree, burglary in the first degree, burglary in the second degree, grand larceny in the third degree and petit larceny, stemming from allegations that he stole his supervisor's tools, entered a bungalow and stole a safe containing jewelry and personal papers, and returned later that evening to rob its occupants. He was sentenced as a second felony offender to an aggregate prison term of 15 to 30 years.

Defendant's principal contention on appeal is that the People's evidence, which was entirely circumstantial, was legally insufficient to support the verdict in that it failed to establish his identity beyond a reasonable doubt and to a moral certainty. It is settled law that the "moral certainty" standard applicable to cases based solely upon circumstantial evidence is only available to the trier of fact; the correct test for appellate review is " 'whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People' " (People v. David, 234 A.D.2d 787, 789, 652 N.Y.S.2d 324, 327, lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 864, 681 N.E.2d 1311, quoting People v. Williams, 84 N.Y.2d 925, 926, 620 N.Y.S.2d 811, 644 N.E.2d 1367; see, People v. Cabey, 85 N.Y.2d 417, 420-421, 626 N.Y.S.2d 20, 649 N.E.2d 1164).

The evidence revealed the following. On August 18, 1994 at approximately 11:30 P.M., Chaim Tyberg and Rivkie Tyberg, proprietors of a seasonal grocery store in Swan Lake, in the Town of Liberty, Sullivan County, had just returned to their bungalow at the Village Green Bungalow Colony when a large white man wearing dark clothing, a nylon mask and a camouflage hat bearing the logo "Alcoa Texas Siding Supply" entered their bedroom and beat them with an unloaded pistol. During the ensuing struggle with Chaim Tyberg, the perpetrator left behind the gun, hat and some $6,600 scattered about the interior of the bungalow. The intruder absconded with a green tote bag containing approximately $85,000 in end-of-the-season receipts consisting of food stamps and $50 and $100 bills. Several thousand dollars in food stamps were recovered from the front lawn of the bungalow. Immediately after the perpetrator fled, the victims discovered that a small grey safe containing jewelry and personal papers was also missing from their bungalow. Earlier that day, unbeknownst to the Tybergs, a woman discovered a safe by the side of the road in the neighboring community of Grahamsville and reported it to the State Police. Upon inspection, the door of the safe was closed but the bottom was cut out and a piece of metal was pulled back off the bottom revealing the inside of the safe. The safe was recovered by the police and identified by Chaim Tyberg.

Defendant, originally from Texas, fit the physical description of the assailant and worked as a part-time maintenance man at the bungalow colony in exchange for free housing for him and his wife, who went by the name Deborah Reed. They resided in bungalow 174, which was the only occupied unit in a larger building containing bungalows 174 through 180. Defendant also did plumbing work in the Tybergs' grocery store. On the day of the thefts, defendant and his supervisor, David Goldberg, were using Goldberg's tools to replace the deck in front of defendant's building. However, Goldberg injured his back and went home early, leaving defendant with full access to the tools temporarily being stored in his bungalow. Goldberg recalled that when he left, the interior of bungalow 180 was completely clean.

When police responded to the scene on the night of the thefts, they could not locate defendant but discovered that many of Goldberg's tools were missing and that bungalows 174 and 180 were covered with cement dust later determined to be from a safe lining. A power saw and some tools found in a box inside unit 180 had similar dust on them. At approximately 10:30 P.M. David Sitko, one of the bungalow residents, saw defendant going over from his living quarters to his pickup truck which was in the parking lot. The truck had a Texas registration. Sitko and another resident had a brief conversation with defendant. Defendant held a dark cap in his hand. About an hour later Sitko heard screaming and went to the parking area where he met Rivkie Tyberg. He did not see defendant's truck in the parking area and did not see him again that summer.

The police subsequently learned defendant's name, that he drove a pickup truck and had a previous address in Grahamsville, the same community where the safe was recovered. An arrest warrant was issued for defendant on August 22, 1994. Defendant and Reed were apprehended in Arizona. Their van, which Reed purchased in New Jersey with $6,000 in $50 and $100 bills the day following the thefts, contained Goldberg's tools covered with the same safe lining cement dust, one food stamp, another camouflage hat bearing the logo "Alcoa Texas Siding Supply", a road atlas of North America that had an "X" on the area where Sullivan County would be and a list of the precise jewelry items reported stolen from the safe. The police recovered additional food stamps with serial numbers consecutive to those left at the crime scene from Reed's purse.

Based upon the foregoing facts and the reasonable inferences drawn therefrom, we conclude that a rational fact finder could have determined that defendant was the perpetrator of all the crimes beyond a reasonable doubt. Accordingly, we reject defendant's claim that the evidence was legally insufficient.

We next address defendant's contention that he was deprived of a fair trial due to the cumulative effect of several alleged trial errors. Initially, we find that Supreme Court did not err in failing to instruct the jury to disregard defendant's leg shackles. We note that defendant's counsel did not request such an instruction. In any event, the court took adequate precautionary measures to minimize the possibility that any prejudice would result (see, People v. Rouse, 79 N.Y.2d 934, 582 N.Y.S.2d 986, 591 N.E.2d 1172; cf., People v. Paul, 229 A.D.2d 932, 645 N.Y.S.2d 682). At defense counsel's request, defendant was seated at the defense table before the jury was brought into the courtroom. As there was no proof that the leg shackles were ever visible to the jury, the absence of a curative instruction was not reversible error.

Defendant next argues that Supreme Court improperly permitted State Trooper Darrin Ruff to testify that approximately three weeks prior to the thefts he impounded an abandoned pickup truck with Texas licenses plates on the side of the road after having observed its operation with one headlight. Paperwork inside the truck showed a change of address from Texas to New York and that it was owned by Deborah Reed. The next day, a woman identifying herself as Deborah Reed appeared at the station and said she had reported the vehicle stolen to the police. The truck was returned to her. Contrary to defendant's argument, Reed's hearsay statements were not admitted to prove the truth of their content but rather to show how the police utilized the information from the truck to trace defendant to Texas. Introduced for this purpose, Reed's statements did not fall within the hearsay exclusionary rule (see, People v. Jordan, 201 A.D.2d 961, 607 N.Y.S.2d 828, lv. denied 83 N.Y.2d 873, 613 N.Y.S.2d 133, 635 N.E.2d 302).

We also reject defendant's assertion that the admission of the statements violated his 6th Amendment right to confrontation under the rule enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. ¹ Here, defendant was not jointly tried with Reed, her statements did not constitute a confession nor did they inculpate him (see, People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459). Under these circumstances, the introduction of Reed's statements was not error.

We find no error in the admission of the testimony of Soncha Gallo, Reed's employer, that Reed suddenly disappeared from her job following the thefts without collecting her paycheck. Gallo's testimony was relevant to prove a material fact (see, People v. Lewis, 69 N.Y.2d 321, 514 N.Y.S.2d 205, 506 N.E.2d 915), namely, that defendant fled accompanied by Reed and that he provided her with the money taken from the theft proceeds to purchase their getaway van.

Defendant also contends that Supreme Court should have precluded the testimony of State Police Forensic Scientist Charles Pompa and State Trooper Daniel Tompkins because each involved scientific evidence which was not the subject of pretrial disclosure and because the court failed to conduct a Frye hearing to determine its general admissibility (see, Frye v. United States, 293 F. 1013). Tompkins testified that on August 19, 1994, he was assigned to the canine unit and in the early morning hours used his dog, Donovan, to track a human scent (obtained from the perpetrator's camouflage hat) from the roadway in front of the bungalow colony to...