People v. Turner , 424 N.Y.S.2d 717 ( 1980 )

OPINION OF THE COURT

Fein, J.

We are all agreed that the evidence on which the defendant was convicted of robbery for his complicity in the holdup of a bar was entirely circumstantial. The evidence upon which the conviction was based is fairly described in the dissent, which concludes that it was insufficient for a conviction and that the indictment must be dismissed. We disagree. The evidence, albeit circumstantial, was sufficient, if believed by the jury, to support the conviction.

However, reversal and remand is required because of the failure of the Trial Judge to charge the jury as to the rules applicable to circumstantial evidence. Although there was no request for such charge and no exception taken by reason of the failure to charge circumstantial evidence, reversal is required in the interest of justice and a fair trial.

It is well settled that a conviction based upon circumstantial evidence will be sustained if the conclusion of guilt is consistent with and flows naturally from the proven facts, and those facts viewed as a whole "exclude 'to a moral certainty’ every reasonable hypothesis of innocence” (People v Benzinger, 36 NY2d 29, 32; People v Cleague, 22 NY2d 363, 365-366). Application of this principle requires careful examination and strict analysis of the evidence.

It is undoubtedly true that a criminal conviction based upon circumstantial evidence is subject to strict judicial scrutiny to insure that the jury does not draw inferences which are based not on the evidence presented but rather on unsupported assumptions drawn from evidence equivocal at best (People v Kennedy, 47 NY2d 196, 202; People v Cleague, supra, at p 367). The problem is to insure that the trier of the facts does not "leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree” (People v Benzinger, supra, at p 32). However in performing the task of close judicial scrutiny, it is essential that all of the evidence be considered in its totality (People v Kennedy, supra). The evidence must be viewed in the light most favorable to the People. Since the People have prevailed at trial, it must be assumed that the jury credited the People’s witnesses (People v Kennedy, supra, at p 203; People v Montanez, 41 NY2d 53, 57). "In the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts.” (People v Wachowicz, 22 NY2d 369, 372.)

The evidence here was sufficient for a jury to find that the defendant was an accomplice of his brother in the robbery of the bar. The testimony of the owner of the bar is undisputed that some 15 or 20 minutes before the robbery she observed defendants, one in a green parka, the other in an orange rainsuit, in front of a telephone booth across the street from the bar. Although taken alone this evidence may be equivocal, it does set the scene and places defendant nearby the robbery site shortly before it occurred.

The next piece of evidence is by the owner, as to the entry into the bar of defendant, whom the owner knew as a customer, clad in a green parka and carrying a drink. Told he could not bring a drink with him, defendant stated he only wished to make a phone call. His attempt to make the call on the public phone was not completed, as evidenced by a return of the coin. Again the conduct is equivocal standing alone. But could a jury not properly infer that the phone call was a signal, in the light of the next piece of evidence? After the phone call, defendant started to leave the bar when his brother, the robber himself, wearing an orange rainsuit, came through the door. Defendant and the robber engaged in conversation at the door, which defendant closed in such a manner as not to lock it. Thus far the activity is perhaps equivocal. However, it begins to take character from what follows, the robbery itself, by defendant’s brother, the man in the orange rainsuit. The evidence is undisputed that while the robbery was in progress, defendant was observed through the window of the bar, walking up and down and looking in both directions. The behavior is no longer equivocal. The evidence up to this point plainly supports to a moral certainty the inference that defendant and his brother were engaged in a joint enterprise, viz., robbery of the bar. The underlying inferences are that defendant’s incomplete phone call was designed as a signal to the robber, and that the exchange at the door related to defendant’s taking up an observation post outside the bar to act as a lookout. Would not "common human experience * * * lead a reasonable man, putting his mind to it, to * * * accept the inferences asserted for the established facts” (People v Wachowicz, 22 NY2d supra, at p 372)?

Although any one of such pieces of evidence might be equivocal, taken together they point in only one direction. The dissent fastens on the fact that the bartender who observed two men leaving outside the bar together after the robbery was equivocal as to whether the two were the defendant and the robber. Concededly such testimony did not aid in linking this defendant to the robber because of the inability to identify the two persons. However, it does not follow, as the dissent suggests, that because that evidence was equivocal the remaining evidence was insufficient.

Unlike Cleague (supra), on which the dissent relies, there was evidence here that the defendant and the robber knew each other and were acting together, as indicated by their contact in front of the telephone booth across the street, their conversation with each other as one emerged from and the other entered the bar, and defendant’s behavior outside the bar while the robbery proceeded. There was no evidence in Cleague that the defendant knew or had any contact with the burglar (People v Cleague, 22 NY2d, supra at p 367). The crucial significance of such knowledge and contact is evidenced by People v Wachowicz (supra) decided the same day as Cleague. The conviction was sustained where the sole evidence of defendant’s guilt was the fact that he was walking and talking with the man who possessed the burglar’s tools used in the attempted burglary. There was no logical gap.

The combination of circumstances here requires neither a leap of logical gaps nor the drawing of unwarranted conclusions. Two men are observed talking to each other across the street, one enters the bar and attempts a phone call, which can surely be regarded as a signal, the men talk to each other at the doorway to the bar, the door is left ajar, the robbery goes forward and the defendant is observed outside acting in the manner of a lookout. A jury could, as this jury did, infer that such conduct was consistent to a moral certainty with guilt. If this evidence is not sufficient to a moral certainty to support an inference of guilt, it is difficult to ascertain the quantity of evidence required in a lookout case. The careful reasoning required of the trier of the facts justifies the jury’s conclusion, the inference of guilt. It is the function of the jury to sift through the evidence to determine whether defendant’s guilt has been proven beyond a reasonable doubt. The task on review is to determine whether there exists sufficient inculpatory evidence to prove defendant’s guilt beyond a reasonable doubt (People v Kennedy, 47 NY2d 196, supra). Tested by that standard, we believe the evidence here sufficed.

The Trial Judge gave a careful and thoughtful charge on the subject of reasonable doubt, which might be deemed sufficient without a circumstantial evidence charge. However, we have concluded that since the defendant’s guilt was completely premised upon circumstantial evidence he was entitled to a circumstantial evidence charge, even though he did not request it and did not except to the court’s failure to give it. We believe the interests of justice and defendant’s right to a fair trial require that the cause be remanded for this reason (CPL 470.05, subd 2; 470.15, subd 6, par [a]; People v Robinson, 36 NY2d 224, 228; People v De Martini, 218 NY 561; People v Vasquez, 47 AD2d 934, 935).

Accordingly, the judgment, Supreme Court, New York County (Levittan, J.), rendered May 10, 1978, convicting the defendant of two counts of robbery in the first degree and sentencing him to concurrent indeterminate terms of 4 Vi to 9 years, should be reversed, on the law, in the exercise of discretion and in the interest of justice, and the case remanded for a new trial.