People v. Savino

• Decision Date: 05 June 1968
• Citation: 22 N.Y.2d 732,292 N.Y.S.2d 115
• Parties: , 239 N.E.2d 209 The PEOPLE of the State of New York, Respondent, v. William SAVINO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 115

292 N.Y.S.2d 115

22 N.Y.2d 732, 239 N.E.2d 209

The PEOPLE of the State of New York, Respondent, v. William SAVINO, Appellant.

Court of Appeals of New York.

June 5, 1968.

Appeal from Supreme Court, Appellate Division, Second Department, 20 A.D.2d 901, 248 N.Y.S.2d 984.

Herbert A. Lyon, Kew Gardens, for appellant.

Aaron E. Koota, Dist. Atty. (Frank Di Lalla, Brooklyn, of counsel), for respondent.

The defendant was convicted of first degree robbery, first degree grand larceny, and second degree assault.

The County Court, Kings County, Samuel S. Leibowitz, J., entered judgment, and the defendant appealed.

The Appellate Division affirmed, holding that although it was error to admit into evidence defendant's hat and coat because their seizure was result of search which was not incidental to defendant's arrest, nevertheless the admission of such evidence did not affect defendant's substantial rights and could be disregarded. The defendant appealed to the Court of Appeals, which affirmed, 15 N.Y.2d 778, 257 N.Y.S.2d 345, 205 N.E.2d 536.

Defendant's motion for reargument of the appeal was granted. Upon reargument the Court of Appeals determined that even if the seizure of the hat and coat was not incident to arrest, the hat and coat played no significant role in the case and their receipt was harmless. The judgment affirming the conviction was affirmed by the Court of Appeals.

MEMORANDUM.

Reargument of the prior decision (15 N.Y.2d 778, 257 N.Y.S.2d 345, 205 N.E.2d 536 (1965)) was allowed (20 N.Y.2d 970, 286 N.Y.S.2d 1027, 233 N.E.2d 863) to permit defendant to argue and this court to consider the effect of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) on the judgment of conviction. For a period of about 45 minutes, during which a robbery and a conversation seeking the discovery of jewelry and other property was in progress, the complaining witness had defendant under close and attentive observation. After his arrest she identified him at a police station lineup of five men. At this time he wore neither hat nor overcoat. Therefore, the hat and overcoat which had been found by police in defendant's home shortly after his arrest and which were received in evidence played no significant role in the case, even if the seizure be deemed not an incident to the arrest. The witness did not say these were the hat and coat defendant wore at the time of the crime but they were 'exactly like' those items. She...