People v. Arroyo

Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered April 27, 1988, convicting defendant, after a jury trial, of robbery in the first degree (Penal Law § 160.15 [3] and sentencing him to an indeterminate term of imprisonment of from 3 Vs to 10 years, is affirmed.

At approximately 2:25 a.m. on November 28, 1986, defendant and one Adan Mercado were arrested and charged with robbery in the first and second degrees, assault in the second degree, and various related crimes, all stemming from a robbery, occurring minutes before their apprehension, of a taxicab driver.^*

At trial, the complainant testified that he had driven defendant and Mercado to Zerega and Herschel Avenues in the Bronx and that, upon reaching this destination, defendant jumped into the front seat next to him, produced a silver gun, and demanded his money and the cab. As defendant pointed the gun at complainant’s stomach, Mercado grabbed the cabbie from behind and placed a knife against his left ear. The complainant handed $15 over to defendant, who then grabbed his wallet, containing $250. At this point, the complainant attempted to take defendant’s gun and, as they struggled, Mercado slashed the complainant in the neck.

Defendant and Mercado then ran from the cab, passing off-duty Police Officer Robert Bracken, who testified at trial that he saw defendant holding a silver-colored handgun as he fled. The complainant also jumped out of the cab and told Officer Bracken and Mario Russo, a civilian who observed defendant and Mercado run away, that the two fleeing men just robbed him.

Responding to a radio run reporting a robbery in progress, Police Officers Michael Thomas and William Schaefer approached defendant and Mercado on Zerega Avenue. As they neared, Officer Thomas heard something drop to the ground, and Officer Schaefer observed Mercado drop something. The two suspects were directed to stand against a nearby fence while Officer Schaefer retrieved the fallen object, which turned out to be a knife. In the meantime, Russo, the civilian witness, arrived in time to see defendant toss an item over the fence. After jumping the fence and discovering that the object was a gun, Russo informed Officer Thomas, who recovered a loaded silver-colored gun. Complainant then arrived and identified both defendant and Mercado as the two men who had just robbed him.

Testifying in his own defense at trial, defendant told the jury that at about 1:45 a.m. on November 28, 1986, Mercado had awakened him and requested his help in taking Mercado’s mother to the hospital. Defendant further testified that he and Mercado had gotten into the complainant’s taxi, and that defendant was shocked when Mercado produced a gun and knife, and announced a robbery.

On appeal, defendant’s primary argument is that the trial court improperly interfered with the presentation of his defense when it refused to allow him to call his mother to testify to the effect that he had been home asleep when Mercado awoke him to request assistance. Defendant urges that this testimony was crucial to his defense because it would have confirmed his account as to why he was with Mercado at the time of the robbery, and contradicted the prosecution’s theory that he had committed the robbery to replenish funds depleted by a night of dancing. Concluding that the mother’s testimony was irrelevant, the Trial Judge excluded it.

It is well settled that a defendant has a fundamental constitutional right to call witnesses (Chambers v Mississippi, 410 US 284; People v Boone, 78 AD2d 461, 465) and that the testimony of a defendant’s witness should not be prospectively excluded unless it is offered in palpably bad faith. (People v Gilliam, 37 NY2d 722, revg on dissenting opn of Hopkins, J., 45 AD2d 744; People v Daly, 98 AD2d 803, 804, affd 64 NY2d 970.) In light of the overwhelming evidence of defendant’s guilt, however, we conclude that there is no " 'reasonable possibility’ that the error contributed to the conviction”. (People v Daly, at 804, supra, quoting People v Almestica, 42 NY2d 222, 226; see also, People v Bennett, 128 AD2d 540; People v Lloyde, 106 AD2d 405.) This evidence included the testimony of the robbery victim, who placed defendant in the front seat with a gun in his hand, the observation by Officer Bracken that defendant held a gun as he fled from the taxi, and the recovery, by Officer Thomas, of a loaded silver gun from the area where defendant was seen—by yet another witness— tossing an item. In the face of such a record, we conclude that, while this error was of constitutional dimension, it must be deemed harmless. (See, People v Gilmore, 66 NY2d 863; People v Crimmins, 36 NY2d 230.)

We further note that the testimony that defendant was asleep in his bed when Mercado awakened him for the ostensible purpose of having defendant assist him in taking his mother to the hospital has no bearing on what happened once defendant entered the taxicab. Even assuming that Mercado presented such a cover story to defendant and defendant’s mother, this was not, as the dissent states (at 341), "evidence corroborative of [defendant’s] innocence” of the robbery, but simply establishes, if accepted as true, his reason for leaving home at 2:00 a.m. Nothing therein would preclude the finding, made by the jury and amply supported in the record, that defendant subsequently participated in the robbery.

We have examined the remaining arguments on appeal, and find them to be without merit. Concur—Asch, Kassal and Smith, JJ. Ross, J. P., and Wallach, J., dissent in separate memoranda as follows:

* Adan Mercado entered a plea of guilty to attempted robbery in the first degree in connection with this crime, and was sentenced, to an indeterminate term of imprisonment of from lVz to 4 Vi years.