People v. Caprio

Christ, J.

(dissenting). This conviction rests on inadmissible evidence which, even when considered, does not establish defendant’s guilt beyond a reasonable doubt. The codefendant, Thomashefsky, committed a burglary some distance from where the defendant sat in a parked automobile which had come to a stop because of mechanical difficulty. The defendant’s complicity turns upon whether he knew the codefendant was about to commit that burglary and had, agreed to await his return. The evidence to support this is found only in a typewritten confession signed by Thomashefsky some 26 or 28 hours after he committed the crime, which, insofar as it is pertinent, reads : “I had not seen Jack for quite a while but in the past two months he has been around the neighborhood. Yesterday I met Jack on Myrtle Avenue in front of my house. He was in his car a 1953 white Chevrolet Sedan. The car had white and blue plates on it but I do not know what state that is from. I asked Jack if he wanted to go for a ride down to the beach. We rode out to Long Island and got lost. I think the car started to overheat so we stopped in a residential area. While we were sitting in the car I said Jack I am going to see if I can get some money. I told him to wait for me that I was going to break into a house. Jack said ‘ OK, I’ll wait for you.’ Jack lifted the hood of the car and he was standing by the car when I walked away.”

However, as a witness for the People, Thomashefsky testified that he had been drinking Friday night, Saturday and most of Sunday, the day of the commission of the crime. Pie had met the defendant that Sunday afternoon, had stopped in a bar with him in Brooklyn and had then taken a ride with him, during which they had stopped at still another bar. He then testified:

“Q All right. Now, after you left the parkway where did you go, could you tell us, with the automobile? A Well, the automobile started to act funny and I told Jack to pull over and he pulled over and I got out of the car and I told him to wait for me, that I would be right back and I seen him lift up the hood and I left.

“ Q What else, if anything, did you tell him when you parked the car and you told him to wait for you, what if anything else did you tell him? A Well, I’ll be honest with you, when he parked the car I was looking for another bar but instead I went around the corner, kicked in a window which I admitted to the detectives and broke into the woman’s place.

“ Q All right. Now, before you did that, did you say anything else to Cap rio other than ‘Walt for me’? A That I don’t know, Mr. District Attorney; believe me, I don’t know.

“ Q Well, let me ask you, then, did you sign a statement for Detective Kelly? A Yes, I did. I have read the statement and what I say I believe it to be true. ’ ’

Thomashefsky was given his confession to read and then testified as follows:

“ Q Now, I ask you whether you can tell us now whether or not you said anything else to him other than ‘ Wait for me ’ ? * * * A I don’t remember if I said anything to Caprio.

“ Q You don’t remember now, is that what you are telling us? A Now I don’t remember.

“ Q You just read People’s Exhibit 5 for Identification. A It’s true, what I said here is true.

“ Q What you said in there is true? A But at the time I got out of the car I don’t remember saying anything to him. I was too ossified. * * *

‘1 Q That statement [Exhibit 5 for Identification] was true at the time you made it, is that correct? A That is correct.”

The confession was ultimately admitted into evidence as a past recollection recorded. In view of the witness’ testimony that he was <( too ossified ” at the time he left the defendant in the car to remember any conversation with him and that,. in fact, he had left the car to search for another bar, not to commit a burglary, this was error. Not only did the witness fail to give the requisite “ guarantee of correctness ” (3 Wigmore, Evidence [3d cd.], §§ 738, 745-747) to the statement concerning the defendant embodied in his confession, but, in effect, he disclaimed that statement. Moreover, even considering, as testimony, the codefendant’s statement implicating him, I cannot agree that the defendant’s intent to participate or assist in the commission of a burglary has been satisfactorily established. At best, the codefendant, who was the actual burglar, was an unreliable witness. lie was a known criminal with 15 previous convictions, who was not only too drunk at the time to remember what had been said, but whose testimony was, on its face, contradictory. In my opinion, the defendant was not proved guilty beyond a reasonable doubt. I would reverse this conviction and dismiss the indictment.

Ughetta, Acting P, Jt, Brennan and Hill, JJ,, concur with Hopkins, J,; Christ, J., dissents in a separate opinion and yotes to reverse the judgment and dismiss the indictment.

Judgment affirmed.