51 A.D.2d 1024 | N.Y. App. Div. | 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 18, 1975, convicting him of robbery in the first degree and possession of a weapon, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. Cohalan, Rabin and Titone, JJ., concur; Shapiro, J., dissents and votes to reverse the judgment and dismiss the indictment, with the following memorandum, in which Hopkins, Acting P. J., concurs: In my opinion the People failed, as a matter of law, to establish defendant’s guilt beyond a reasonable doubt. The uncontradicted evidence at the trial shows that, at 9:15 p.m. on June 17, 1974, two male Negroes robbed a Good Humor man in his ice cream vending truck near 45 Street and Beach Channel Drive in Far Rockaway. One of the men pointed a pistol at the victim while the other searched him and took his keys, handkerchief, lighter, a wallet containing papers and $80 in bills, a coin changer, plus some $30 or $35 in coins, and his "lucky piece” (a metal coin or medal bearing the words "lucky buck”). The robbers ran away from the Good Humor truck and were pursued by some young men from the neighborhood. One of the robbers turned and fired a shot at Rene Cintron, one of the young men, from a distance of 10 feet, but missed him. Robert Rothenberg, another of the young men, ran around a corner and saw an automobile about a block away back up fast and then drive off. The car was a Buick Century, with a very dark blue body and a white vinyl top.