26 A.D.2d 654 | N.Y. App. Div. | 1966
Appeal by defendants from judgments of the Supreme Court, Nassau County, rendered January 5, 1962, after a joint jury trial. Defendant Robert Moll was convicted and sentenced as follows: (1) murder in the first degree committed while engaged in the commission of a felony — life imprisonment, (2) murder in the second degree — 40 years to life, to run concurrently with the sentence for murder in the first degree, (3) robbery in the first degree —15 to 30 years, to run consecutively with the sentences imposed on the murder counts, (4) grand larceny in the first degree — 5 to 10 years, (5) assault in the first degree against Raymond Tiehelaar — 5 to 10 years, (6) assault in the second degree against Raymond Tiehelaar — sentence suspended, (7) assault in the first degree against Frank Gagliardi — 5 to 10 years, and (8) assault in the second degree against Frank Gagliardi — suspended sentence. The separate 5 to 10 year sentences imposed on the larceny and two assault in the first degree counts were to run concurrently with the sentence imposed on the robbery count (15 to 30 years). Codefendants John Closter and William Stanbridge were each convicted and sentenced to the Elmira Reception Center pursuant to article 3A of the Correction Law, as follows: (1) manslaughter in the first degree —10 to 20 years, (2) robbery in the first degree —15 to 30 years, (3) grand larceny in the first degree — 5 to 10 years, to run concurrently with the sentence for robbery, (4) assault in the first degree against Raymond Tiehelaar — 5 to 10 years, (5) assault in the second degree against Raymond Tiehelaar — sentence suspended, (6) assault in the first degree against Frank Gagliardi — 5 to 10 years and (7) assault in the second degree against Frank Gagliardi — sentence suspended. The sentences imposed on the manslaughter (10 to 20 years), robbery (15 to 30 years), and two assault in the first degree (5 to 10 years) counts were to rim consecutively. By order of this court, dated December 21,1964 (People v. Moll, 22 A D 2d 921) this action was remitted to the trial court for a Huntley type hearing to determine the voluntariness of defendants’ confessions pending which the appeals have been held in abeyance. The prescribed hearing was held and resulted in a finding that defendants’ confessions were voluntary beyond a reasonable doubt. The trial court made an order thereon, entered June 11, 1965. With respect to defendant Moll, judgment affirmed. With respect to defendants Closter and Stanbridge, judgments modified, on the law, so as to make the sentences imposed for assault in the first degree run concurrently, not consecutively, with that imposed for robbery. As so modified, judgments affirmed. Findings of fact are affirmed. Order of June 11, 1965 affirmed. The evidence is beyond dispute that defendants had already robbed and tied the employees of Food Fair Supermarket and had cleaned the safe, when they were confronted in the parking lot more than 100 yards from the store by the deceased patrolman. They had loot, disguises, and one of them had a sawed-off double-barreled shot gun with which the officer was assassinated. Fleeing of defendants with the loot in their possession warranted the conviction on the felony murder count (People v. Moran, 246 N. Y. 100, 103) and distinguishes the present facts from those in People v. Marwig, 227 N. Y. 382, 385). The conviction of defendants Closter and Stanbridge' for manslaughter in the first degree is fully justified by a finding that they all agreed to commit assaults against any one who stood in their way, but participated as accomplices in the homicide without intent to kill (see People v. Monaco, 14 N Y 2d 43). In any event, we need not