People v. Rybak

O’Malley, James, J.

This is a motion for a certificate of reasonable doubt. The defendant was convicted of robbery in the first degree. The complainant was assaulted late at night by three men, two of whom, escaped entirely, and one of whom disappeared in a tenement house in the immediate neighborhood. The only witnesses to the assault, beside the complainant, were two small boys of the age of ten and thirteen years. The defendant was not immediately apprehended. After the police officer came on the scene he was accompanied by the two boys into the building where one of the men was seen to disappear, and in one of the rooms on the top floor of the building the defendant was found in bed. He denied guilt and claimed to have retired early in the evening. He was arrested, taken to the hospital and brought before the complaining witness.

Upon the trial one of the boys was permitted to testify, without objection, that he identified the defendant in the room where he was arrested, and the officer was permitted to testify fully as to the story of the robbery as told to him by the complainant in the presence of the defendant when the latter was confronted by the complainant in the hospital.

The question of the defendant’s identification was the all-important issue. None of the witnesses had seen him before. On the trial the complainant positively identified him as one of the men who had robbed him and the other two witnesses identified him as the man they had seen run away.

I am of opinion that it was error to receive the testimony of the witness Stackman as to the subsequent identification of the defendant (People v. Jung Hing, 212 N. Y. 393; People v. Seppi, 221 id. 62; People v. Marendi, 213 id. 600, 614, 615; People v. Di Martini, 213 id. 203, 216, 217), and likewise error to permit the police officer to testify to what the complainant had told him, even though the defendant was present. It does not sufficiently appear that the defendant understood the conversation, nor does it appear that the defendant participated therein, or made any reply to the statements of the complainant. He was under arrest and was entitled to remain mute. People v. Marendi, supra. While the evidence received was not objected to, nevertheless, it was of a nature calculated to prejudice the defendant, and perhaps of such a character as to require a reversal even though admitted without objection. People v. Jung Hing, supra. While the case cited was one of murder in the first degree the charge here is robbery in the first degree and a severe sentence has been imposed. While the evidence was sufficient to justify a conviction, I am of opinion that the alleged errors specified are of such a nature as to require the granting of this application. Motion granted. Settle order. Bail to be fixed on settlement.

Ordered accordingly.