People v. Grano , 38 N.Y.S.2d 668 ( 1942 )

Johnston, J.

Defendant and one Long were jointly indicted for the crime of robbery in the first degree, committed at Smith-town, Long Island, about one-thirty a.m. on April 26, 1939. The indictment in separate counts charges the defendant and Long with the same crime but under different subdivisions of section 2124 of the Penal Law: (1) being armed with a dangerous weapon; (2) being aided by an accomplice actually present; and (3) being aided by the use of an automobile. Long was arrested in Brooklyn two days after the robbery. Defendant was apprehended at San Francisco on August 1, 1941. The trial was severed as to Long. Defendant was convicted and sentenced to State prison as a second offender for a term the minimum of which is thirty and the maximum sixty years, and an additional sentence of not less than ten years was imposed pursuant to section 1944 of the Penal Law. Long, who had been convicted three times for larceny and robbery and at the time of the trial was a prisoner at the Dannemora State Prison, was a witness for the defendant. On cross-examination he admitted he had been convicted of robbery in Brooklyn in 1939. He was then asked if, in May, 1939, the defendant had not been jointly indicted with him for that offense. He replied the indictment was against him and John Doe. On defendant’s motion the court struck out this testimony and instructed the jury to disregard it. In rebuttal the People called a police officer, who, over the objection of defendant, was permitted to testify that the indictment was against Long and defendant. This was error. However, in view of the fact that Long admitted he had been convicted of the crime for which he had been indicted and defendant admitted he previously had been convicted of grand larceny, the erroneous reception of this testimony could not have had any appreciable influence upon the verdict and may be considered harmless.

Long was arrested in the attic of his or his father’s home in Brooklyn. The arresting officer testified that at the time of the arrest he found a shotgun in the attic. Defendant contends this testimony concerning the shotgun should not have been received because there was no proof that it belonged to Long or that it was the weapon used in the robbery for which defendant was convicted. This is true, but the shotgun was not received in evidence, nor was any further reference made to it and the testimony was received without objection on the part of defendant.

Defendant also complains that certain hearsay evidence was admitted. But the hearsay was brought out by defendant’s counsel on cross-examination. Moreover, it was received without objection and no motion was made to strike it out, except in one instance, when defendant’s counsel moved to strike out the testimony of the witness, and when the court asked if the motion was confined to the hearsay, counsel replied it was directed to the “entire testimony” of the witness. The motion was properly denied. The guilt of the defendant is palpable and was so convincingly proved that the alleged errors must be disregarded. (Code Or. Pro. § 542.)

The judgment should be affirmed.