People v. Way ( 1982 )

Judgment of the Supreme Court, New York County (Scott, J.), rendered August 4,1981, convicting defendant, after a jury trial, of burglary in the first degree and robbery in the second degree and sentencing him to concurrent indeterminate terms of two to six years, affirmed. As the dissenting opinion states, defendant was convicted after a jury trial of burglary in the first degree and robbery in the second degree on the basis of circumstantial evidence. Although disagreeing with the conclusion reached in the dissenting opinion, we agree that it fairly sets forth the applicable rules of law. In light of the dissenting opinion’s comprehensive factual recital, we deem it unnecessary to set forth a second detailed factual review other than to note, with respect, our view that the dissenting opinion’s factual statement in some respects obscures the clear meaning of the testimony, omits facts clearly important to a balanced evaluation of what occurred, and presents as plausible inferences that do not appear to us to be so. We agree that the case is similar in significant respects to People v Cleague (22 NY2d 363). In our view, however, the evidence presented in this trial is significantly stronger than that presented in Cleague. From the testimony of Gladys Burgos that during the course of the robbery and while she was standing near the window through which the intruder had entered the apartment, she heard from outside the window a whistle, followed by the words “Hurry up”, and then saw the intruder look in the direction of the window, the jury could have reasonably concluded that there was an accomplice on the street outside the apartment. From the testimony of Carlos Burgos the jury could reasonably have concluded that the defendant was that accomplice. Awakened by the conversation during the course of the robbery, Carlos Burgos had rapidly descended from a separate window onto an alleyway leading to the street, where he observed directly in front of the Burgos’ apartment the defendant looking at the open window and looking up and down the street. Significantly, Carlos Burgos saw no one else on the street at that time. The thesis presented by the dissenting opinion as reasonably consistent with defendant’s innocence involves the following suggested reconstruction of the events. After the intruder completed the robbery he left through the open window. Angel Burgos then dialed 911 to inform the police of the robbery, looked out the window and saw the intruder running in the direction of Morningside Park apparently pursued by a security guard and a security officer, and saw no one else on the street at that time. For some unspecified period of time he stopped looking out of the window, during which interval the defendant, whom Angel had not seen on the street during his period of observation, came to the sidewalk directly opposite the Burgos’ apartment where he was then observed by Carlos in the manner described previously. We do not agree that the jury was required to accept this dubious hypothesis as a reasonable explanation of what occurred. When the testimony of Angel, Gladys and Carlos Burgos is considered in detail, with particular reference to what appears to have been the same words by Angel that alerted both Gladys and Carlos to the robbery (“Don’t shoot, don’t shoot” according to Gladys; “Don’t fire, don’t fire” according to Carlos), and when the testimony of Gladys and Angel Burgos describing the subsequent events of the robbery is compared with Carlos’ account of his movements, the inference is very strong indeed that Carlos had come to the street and observed the defendant looking into the open window and in each direction on the street at a time when the intruder was still in the apartment. Indeed, from the totality of the evidence the jury could have found compelling the inference that it was the arrival of Carlos on the street, his observation of the defendant, and his running to secure assistance that elicited from the defendant the warning heard by Gladys, “Hurry up”, and the defendant’s own movement away from the area of the Burgos’ apartment in an unsuccessful effort to secure a cab that would remove him from the scene. We are persuaded that when the evidence is considered as a whole, in detail, and realistically, it presented a factual issue for the jury which the jury was entitled to resolve as it did. Concur — Sandler, J. P., Fein and Milonas, JJ.