20 N.Y.2d 238 | NY | 1967
Lead Opinion
If a defendant has made use of any false or fraudulent representation or pretense in the course of .accomplishing, or in aid of, or in facilitating a theft, evidence thereof may not be received at the trial, unless the indictment dr information charges . such, representation or pretense (Penal Law, § 1290-a). This statute (L. 1950, ch. 149) enacted the principles expressed in the dissenting opinion by Judge Fuld in People v. Lobel (298 N. Y. 243): Appellant contends that evidence of this character was illegally introduced against him in this prosecution for grand larceny in the first degree. The record does not indicate, however, that any such representation or pretense was used in this instance. Jennie Finch is the complaining witness
“ The Witness: Brown said to me, ‘ How much money you got.’ I said, ‘ That ain’t none of your business.’ Meyers took my bag. It was a big brown bag.
“The Court: He took your bag.
“ A. (continuing) And he took my money out of the bag and handed it over the seat to Brown.
“ The Court: Meyers did that?
“The Witness: And in pulling out the money he left $50 in the bank book, stuck it right in the bank book.
“ Q. How much did you have in the bank book then?
“ A. $1,000 was in the bank book. He pulled it out, he took out $950. ’ ’
It is apparent from the record that until this point nothing had been said in the nature of false representations or pretenses, that this time she did not enter the automobile voluntarily but
It was after this that the complaining witness said that Brown was supposed to bury her money, that he wrapped it in a handkerchief and “ I said ‘ You know he ain’t going to bury no money anyhow. ’ ”
Whatever may have prompted this woman to enter the automobile on the first occasion, nothing in her testimony- — • which is all that there is upon this point — indicates that she was induced to part with any of this money by any pretense or false representation. What was said about burying the money was spoken after she had been pushed into the automobile when she re-entered it the second time and after her purse had been taken from her by force. There is thus no basis for a contention that appellant was convicted in violation of section 1290-a of the Penal Law.
The only other point which merits attention is the argument that Jennie Finch’s identification of appellant Brown was unfair as a matter of law. She -testified on direct examination that she went to the 103rd Precinct Station two or three weeks after the theft and was taken into a room adjacent to the one in which the defendants were in custody. She looked through a small window at the suggestion of the police officer into the other room, and identified the defendants. There were three people in the other room, the two defendants, both negroes, along with another individual, a detective, who was white. It does not appear whether they had an attorney at that time. On June 12,1967, the United States Supreme -Court decided the cases of United States v. Wade, Stovall v. Denno and Gilbert v. California (388 U. S. 218, 293, 263). It was held in Wade that where the accused has a lawyer, the Sixth Amendment requires that he be given an opportunity to be present at an identification of an accused in a police line-up. In Wade the prosecution did not offer into evidence the testimony of a prior identification, which may be done under our section 393-b of the Code of Criminal
It is further contended that, regardless of the Wade rule, it was unfair to have allowed evidence of identification where there were only three people in the line, two of them being defendants, who were negroes, and the third being white. Under the circumstances of this case there was no prejudice in the identification of appellant by the complainant.
The judgment of conviction should be affirmed.
Concurrence Opinion
(concurring). The court’s analysis of the record demonstrates that no misrepresentations were used to effect or facilitate the theft charged against the defendant and, consequently, I agree that the testimony given by the victim was properly received in evidence. I agree also that the procedure employed by the police in procuring the victim’s initial identification of the defendant was not prejudicial but I consider that procedure so unfair as to require additional comment.
The defendant was convicted of grand larceny for having taken $950 from a woman who was in his company for a considerable length of time before and during the commission of the crime. After the defendant and a codefendant were in custody, the victim identified them at the police station by looking through a “ peep hole ” into a room in which they and a detective were the only persons present. And she again identified them at the trial.
Absent “imperative” circumstances necessitating resort to such a procedure, the practice of having a witness secretly
Opinion by Judge Van Voorhis. Ail concur, Chief Judge Fold in a separate opinion in which Judges Burke, Scileppi and Keating concur.
Judgment affirmed.