People v. Morello

Judgment, Supreme Court, Bronx County (Floria, J.), rendered April 9, 1981, convicting defendant after a jury trial of assault in the second degree and sentencing him to an indeterminate term of IV2 to 4Mt years, affirmed. On this record, we find the proof legally sufficient to have posed a factual issue for the jury. The circumstantial evidence in the case, which was buttressed by defendant’s admission of guilt at the time of his arrest, supports the finding by the trier of the facts that defendant was guilty beyond a reasonable doubt. Despite the suggestion by the dissent that defendant was not properly identified as the person who had assaulted D’Ambrosio, there was ample circumstantial evidence adduced on the issue. Tartarone testified that D’Ambrosio was struck by a big, “stocky fellow,” about five feet, nine inches, maybe more than 220 pounds, following which D’Ambrosio “ ‘bing’ hit the floor * * * was out like a light.” Pergolis observed D’Ambrosio standing alongside the driver’s door of his car, when a stocky, heavy man, Caucasian, with facial hair, struck D’Ambrosio on the left jaw, knocking him down and causing the back of his head to strike the pavement. According to Pergolis, defendant looked like the individual who had struck D’Ambrosio, albeit he could not make a positive identification. D’Ambrosio, who was waiting next to his car for one of his friends, identified defendant as having been outside the bar on the night of the assault but he did not actually see the man who struck him. He specifically denied engaging in any conversation with defendant prior to the assault, nor did he take a swing at Morello. As a result of the incident, D’Ambrosio suffered a cerebral concussion, a cerebral contusion, brain-stem contusion and subarachnoid hemorrhage. The injuries resulted in amnesia, seizure disorder, epileptic disorder, hearing loss, loss of taste and smell, double vision, unsteadiness and organic mental syndrome. Defendant was arrested 11 days after the occurrence, at which time, in response to a request for pedigree information, he told the arresting officer that he was six-feet tall and weighed 250 pounds. Although he was clean shaven at the time of arrest, defendant conceded that on the night of the incident he had a beard which he had removed three days prior to arrest. After Miranda warnings had been given, defendant admitted having “clocked the guy * * * standing by his car door, on the driver’s side of the car.” Defendant told the officer that “the guy took a swing at him * * * he ducked and he clocked the guy and the guy went right out.” We disagree with the views expressed by the dissent that the evidence was insufficient as a matter of law. There is no proof that anyone other than D’Ambrosio was standing alongside the driver’s door of the car at the time of the assault. Nor is there any question that D’Ambrosio was identified as the person who had been struck. The fact that the witnesses were unable to identify defendant in the lineup is not dispositive, particularly considering that the photograph shows that the lineup in this case was ro outstanding that even one familiar with defendant could encounter great difficulty in making an identification. Nevertheless, there was sufficient legal proof consisting of the circumstantial evidence, the defendant’s admission at the time of his arrest, corroborated by the fact that he matched the description ivhich had been given of the assailant, to warrant submission of the case to the jury and to support the jury finding that defendant was guilty beyond a reasonable doubt. Concur — Ross, Bloom and Kassal, JJ.