People v. Rosado
| Decision Date | 12 October 1978 |
| Citation | 64 A.D.2d 172,409 N.Y.S.2d 216 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Eduardo ROSADO and Anibal Rodriguez, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Harry Turkel, New York City, of counsel, for defendant-appellant Eduardo Rosado.
Melvin N. Borowka, Mineola, of counsel (Borowka, Golomb & Muchnick, Mineola, attorneys), for defendant-appellant Anibal Rodriguez.
Timothy J. McGinn, New York City, of counsel (Billie Manning, New York City, with him on the brief; Mario Merola, Dist. Atty.), for respondent.
Before MURPHY, P. J., and LANE, MARKEWICH, LYNCH and SULLIVAN, JJ.
This case illustrates the pitfalls of a faultily drawn indictment, the defects in which, in this instance, require reversal of a conviction after jury verdict. The defendants were charged with acting in concert in the commission of robbery in the first degree (Penal Law § 160.15(2)), robbery in the second degree (Penal Law § 160.10(1)), and two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03), arising out of a gun-point holdup of a taxicab driver.
According to the victim, the robbery was committed by three men, the defendants and another male, never apprehended. The victim testified that the defendant Rosado held a pistol against the back of his head. He offered no testimony that any other gun or weapon was displayed during the robbery. Forty-five minutes after the robbery Rosado and his co-defendant, Rodriguez, were stopped by two police officers, who eventually took a loaded pistol from Rosado and a pen gun and three live rounds from Rodriguez. None of the loot was recovered.
The first count of the indictment charged robbery in the first degree, alleging that "the defendants were armed with deadly weapons, to wit, loaded pistols."
The second count charged the defendants "with acting in concert with each other in the possession of a firearm, to wit, a loaded pistol, with intent to use it unlawfully against another." Unfortunately, the indictment did not specify whether the defendants were being charged with the possession of this unidentified pistol at the time of the robbery, or at the time of arrest.
The fourth count charged the defendants "with acting in concert with each other and another in the possession of a firearm, to wit, a loaded pistol with intent to use it unlawfully against another." Thus, the only difference between count two and count four is that the former charged the defendants with acting in concert with each other while the latter charged them with acting in concert with each other and another person.
During a pre-trial hearing, the defendants moved to strike both weapons counts on the ground of lack of specificity. In the course of argument the prosecutor made it clear that it was the People's position that the second count encompassed the pistol used in the robbery, and later recovered from Rosado, while the fourth count applied to the pen gun taken from Rodriguez at the time of his arrest. The People's position regarding the pen gun was stated as follows:
Your Honor, first let me state that the representation made in the very beginning of this hearing that the people would not be presenting evidence to the Court about the pen gun was based on a misreading of the indictment.
It was only after I read the grand jury testimony I became familiar of the fact that the grand jury evidence presented to it concerning the pen gun and I have supplied your Honor with a copy of the grand jury testimony concerning that pen gun.
Very simply, very simply state, (sic) your Honor, our position is that these defendants were indicted by the grand jury of Bronx County for the crime of robbery in the first degree.
Under the theory as presented to the grand jury, and as required by Section 160.15 of the penal law, that they were armed with deadly weapons, during the course of the robbery or in the immediate flight therefrom.
It's our position that the weapon on Mr. found on Mr. Rodriguez at the time of his arrest would be a weapon with which he was armed at the time of the commission of the robbery or at least it is a consideration for the trier of the facts, namely the jury, as to whether or not the evidence is sufficient to indicate that Mr. Rodriguez had the weapon on him at the time that the robbery was committed.
Inasmuch as the statute does not require that that weapon be displayed, the fact the participants in the robbery merely be armed with the weapon at the time that the robbery is committed, as far as the weapons counts are concerned, it is our position that the possession of either weapon, while during the course of the robbery, while each defendant was armed with the weapon is attributable to the other defendant under the theory of acting in concert.
Accordingly, we ask this Court to allow testimony concerning the admissibility of the gun.
The following colloquy immediately ensued:
(assistant district attorney): Your Honor, that's not our position. Our position is, it would be for the trier of the facts to determine whether or not the defendants did have in their possession at the time of the robbery the loaded weapons or in fact they did have in their possession at the time of the arrest the loaded weapons; and if the trier of the facts felt they did have it in their possession, then they would accordingly be able to find these defendants guilty of the crime of possession of a weapon.
The Court indicated its agreement with the People's position and denied the motion to dismiss the weapons charges. It likewise denied a motion for severance of the fourth count based on misjoinder of parties and offenses due to legal insufficiency of evidence showing Rosado's scienter of the possession of the pen gun by Rodriguez. Thus, the Court, in effect, amended the indictment to charge two separate instances of possession on both weapons counts, that is, a possession in the taxicab during the robbery and a possession forty-five minutes later at the time of arrest.
At trial, at the conclusion of the People's case, an order of dismissal was entered as to Rosado on the fourth count. Consistent with that determination, the Court, over objection, charged the jury that the fourth count The Court further charged ...
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