Citation Numbers: 303 N.Y. 193
Judges: Conway, Desmond
Filed Date: 7/11/1951
Status: Precedential
Modified Date: 1/12/2023
Defendant-appellant Spinello, above named, appeals here from a divided-vote affirmance of his conviction of robbery in the first degree. The two opinions in the Appellate Division deal mainly with the meaning, and application to this case, of section 393-b of the Code of Criminal Procedure which was passed by the Legislature in 1927 (L. 1927, ch. 336) and is, in full, as follows: “ § 393-b. Testimony of previous identification. When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification.” This statute,
The theory of the prosecution was that appellant Spinello, with defendant Principe and a third man (called “ John Doe ” in the indictment) committed a holdup on the morning of April 25, 1947, in the premises of a radio company in a loft building in The Bronx, and took $400 in currency from the pockets of the complaining witness Hyman. The third man (John Doe) was never arrested. Appellant Spinello and defendant Principe were tried together. At the close of the trial the County Judge dismissed the indictment as to Principe (no one identified Principe as having taken part in the robbery, although he, with this appellant Spinello, was caught by the police a few hours later in an automobile which is claimed to have been the getaway car). As to appellant Spinello, the real question was identity, and the jury found him guilty.
We now summarize the testimony. The principal witness, Hyman, said that on the morning in question, two men came into Hyman’s premises on an upper floor of a loft building, that one of them remained at the door, that the other one, who was not identified by any witness, inquired from an employee as to the whereabouts of Hyman, and that, when Hyman was pointed out, this unidentified criminal walked over to Hyman and told the latter to go into his office, whereupon Hyman and the intruder stepped into Hyman’s office and the intruder took a gun from his pocket, told Hyman to turn around and face the wall, told him it was a holdup and demanded the payroll. This unidentified man then told a bookkeeper (witness Toscano) to mind her own business and she would not be hurt. Hyman, as he testified, told the unidentified person that the payroll was late and had not yet arrived, whereupon the thief looked through various drawers and took $400 (in ten- and twenty-dollar bills) from Hyman’s pockets and then told Hyman to walk out with him to the front door as if they were talking in a friendly way. At this point in his testimony Hyman made what we consider
Hyman further testified that, a few hours later on the day of the robbery, he received a telephone call from police officers as a result of which he went to a police station, talked with some policemen there and then was confronted with two men. When asked whether he saw in court the two men he had confronted in the police station, Hyman said, 11 Presumably they are the same two men.” Then he said, “ Well, if that is the two men I saw, that is the two men here.” Hyman testified that at that visit to the police station he identified one of the two men and, when asked which one he pointed out appellant Spinello in the courtroom. Later Hyman testified that at the police station that day he saw appellant Spinello. Again, testi
Another witness for the People was Klebanoff, who was working at the radio company that morning and did not see the holdup but, when told about it by the bookkeeper, went out into the corridor, whereupon two men ran past Klebanoff, one of whom was putting a gun away. When asked whether he saw in court the man whom he saw putting the gun away that day, Klebanoff answered that he thought it was appellant Spinello. He corroborated Hyman as to writing down the license number. The County Judge questioned this witness also, and asked him, as the Judge had asked Hyman, whether or not Spinello was the man the witness had seen, and the witness twice said he could not be sure.
Another police officer, testifying for the People, said that when appellant Spinello was at the police station he (the witness) got Spinello to write, several times, the name “ Angelo Lubovia ” which was on the auto registration card, and this piece of paper, on which appellant wrote this name (and the street address on the registration), was put in evidence apparently in an effort to show that the signature on the license card was really written by this appellant. Spinello told this officer also that he was unemployed but had won the $90 in gambling. Spinello, to the officers, denied all knowledge of the robbery, and said that he had gone that morning to the home of defendant Principe and had waited until the latter got dressed, and then drove downtown with the latter. Another police officer testified that he went to the address shown on the automobile registration and could find no one named Angelo Lubovia. The testimony of officers Thompson and Lloyd showed discrepancies between the stories told separately by appellant to the two policemen as to his whereabouts and activities that morning and the People point to this as evidence of consciousness of guilt, etc.
Appellant neither took the stand nor called witnesses, although the police testified that he had denied to them any complicity in the crime. The efforts of appellant’s counsel went no further than to try to cast doubt on the identification testimony and to urge on the court that there was a ‘ ‘ scintilla ’ ’ of proof only.
The majority opinion in the Appellate Division held that there was ample proof to sustain appellant’s conviction, and that it was proper to permit Hyman to testify to his previous identification of Spinello at the police station. The opinion then went on to discuss the theory and history of section 393-b of the Criminal Code (supra). The majority opinion pointed out that appellant at the trial made no effort to explore the circumstances of that previous identification and never really claimed that the man identified at the police station was not he. That Appellate Division opinion pointed out that there is other testimony connecting appellant with the crime, in that he made contradictory statements to the police officers as to his whereabouts that morning, that he was found in the escape car, and in that, although he was out of work, $90 in ten-dollar bills was found in his pocket which he had said he had won in gambling. Finally, the Appellate Division majority opinion stated that (as is evident from our inspection thereof) there is a resemblance between the signature “ Angelo Lubovia ”, as written by appellant for the police officer, and the signature of the same name
The dissenting opinion at the Appellate Division quoted some of the testimony mentioned above, given by Hyman for identification purposes, and pointed out that, before section 393-b was adopted, Hyman’s testimony that he had previously pointed out appellant at the police station would have been inadmissible as hearsay (People v. Jung Ming, 212 N. Y. 393), also that the Federal courts (see Di Carlo v. United States, 6 F. 2d 364; United States v. Forzano, 190 F. 2d 687) have an even broader rule than that of section 393-b, since in the Federal courts, under some circumstances, other persons may testify to a previous identification by the identifying witness. Wigmore on Evidence (3d ed., Vol. 4, § 1130, citing many British and American cases for his point of view, apparently adopted later by our Legislature) recommends a wide use of testimony of previous identification. The dissenting opinion, recalling that the Baumes Commission, in this State, had recommended the adoption of section 393-b, expressed the belief of the dissenting Justices that the testimony received under section 393-b should be considered not evidence in chief but merely, we suppose, some kind of corroboration, or further assurance of credibility. The language and meaning of section 393-b, however, arc quite plain: 11 "When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification.” There is nothing in that language or the Baumes Commission’s recommendation, or the Federal decisions to suggest that such proof of previous identification is anything other than substantive proof of identification, and we know of no good reason for imposing any condition on its use (see Wigmore’s note on the Jung Hing case, Vol. 4, bottom
There is, of course, another rule of evidence discussed in People v. Singer (300 N. Y. 120), which says that where the testimony of a witness is assailed as a recent fabrication, it may be confirmed by proof of similar declarations before the motive to falsify existed. That Singer rule is somewhat similar in terms to the statutory rule of section 393-b, but section 393-b is limited to identifications, and the condition for the use of section 393-b is not an attack on the principal testimony as a recent fabrication, but a dispute as to the truthfulness or accuracy of identification testimony.
The dissenting opinion here, after making the suggestion that section 393-b testimony is not evidence in chief, goes on to say that, regardless of that, the testimony here of the prior police station identification would not in itself be sufficient to support a conviction, We need not pass on that question, since there is other substantial proof here, and taking the whole testimony of Hyman together with all the other evidence in
There is no rule of law which requires an identification to be positive beyond any shadow of doubt (see Underhill on Criminal Evidence [4th ed.], p. 176; 1 Wharton on Criminal Evidence [11th ed.], p. 328; People v. Strollo, 191 N. Y. 42, 62; People v. Whigham, 1 Wheel. Cr. Cas. 115; People v. Wilson, 3 Parker Cr. Rep. 199, 206). An honest witness called on to identify some one he has seen only once may readily admit that, while he is quite sure of identity, he cannot be absolutely sure (see as to a witness: “ conscientious against swearing positive,” People v. Whigham, supra, p. 116). Here there was more, since the witness said he had positively identified appellant at the police station and was sure that the man being tried in the courtroom was the man he had identified at the station. Furthermore, there was other evidence connecting Spinello with the crime, in that he was, three hours after the crime, in a car (registered in a probably fictitious name) which the jury could say was the escape car, also in his conflicting statements as to his whereabouts that morning, a conflict which the jury could consider as some evidence of guilt (see People v. Deitsch, 237 N. Y. 300). On the whole case we cannot say that the proof is insufficient as matter of law.
The judgment should be affirmed.