95 A.D.2d 688 | N.Y. App. Div. | 1983
—Judgment of Supreme Court, Bronx County, rendered November 27, 1981 after jury trial before Fred W. Eggert, J., convicting defendant of robbery in the first degree and imposing an indeterminate sentence of 7-Vfe to 15 years, reversed, on the law and the facts, and the indictment dismissed. Ralph De Jesus, a candy truck operator who had operated his confectionary truck for over 10 years in the Castle Hill area of The Bronx, was murdered in the truck on an August evening in 1980, during the course of an alleged robbery. Three eyewitnesses testified to the crime. The evidence was overwhelming that codefendant Nelson Graham was the murderer and robber. Defendant is a brother of the girlfriend of Graham. Graham was convicted of fatally shooting De. Jesus. Defendant was charged with acting in concert with others, in an indictment charging murder, robbery and criminal possession of a weapon. The prosecution charged defendant as the “look-out”. He was acquitted of murder but convicted of robbery. The evidence was insufficient as a matter of law to support that conviction beyond a reasonable doubt. Witnesses placed defendant at the scene during the evening in question. Two of them (Earle and Cusimano) were standing within two or three feet of De Jesus’ truck, and a third (Diaz) was standing about 20 yards away. As they described the action, four individuals approached the area together — defendant, codefendant Graham, codefendant Melvin Hudson (defendant’s brother) and one Victor Crowel. Graham, who was wearing a stocking mask down to his forehead, handed a bottle of beer to defendant, pushed Cusimano (who was in the process of making a purchase) out of the way, and leaped into the truck through an open window. Shots rang out as Graham was observed searching around inside the truck, and defendant, standing nearby, outside the truck, was heard to yell, “Get out of the truck, clear out”. Codefendant Melvin Hudson, seated on a bench nearby throughout the incident, was heard by one witness to say at one point, “The coast is clear”. Graham was observed jumping out of the same window, carrying a gun in one hand and a small “garbage bag” in .the other. Diaz testified that he recalled, from working with De Jesus years earlier, that De Jesus used to keep his money in such a bag. As Graham fled the scene, defendant pulled De Jesus’ bleeding body out of the truck and laid him on the ground. Tempers flared in the confusion, and as Diaz attempted to draw near, defendant warded him off with the beer bottle still in his hand. Defendant was observed trying to help the victim, De Jesus, telling the gathering to step back and give De Jesus air to breathe. This is the extent of the eyewitness testimony linking defendant to this crime. The statements of these witnesses to the police, implicating defendant, leave much to be desired. Earle, who another witness said had been drinking, initially identified the shooter as another individual later determined.to have an ironclad alibi. In subsequently identifying Graham, the Hudson brothers and Crowel as being involved in the incident, Earle explained that he had originally lied to the police because he had not wanted to get involved. Diaz initially identified