
    The People of the State of New York, Respondent, v. Peter Spinello, Appellant, et al., Defendants.
    First Department,
    February 13, 1951.
    
      
      Louis Gorman of counsel (Gorman & Gorman, attorneys), for appellant.
    
      George Tilzer of counsel (Herman J. Fliederblum with him on the brief; George B. De Luca, District Attorney, Bronx County), for respondent.
   Cohn, J.

The indictment charged appellant Peter Spinello, defendant John Principe, and “ John Doe ” with the crime of robbery in the first degree. “ John Doe ” was never apprehended and the trial proceeded against the other two defendants. At the close of the People’s case the indictment against defendant John Principe was dismissed, but the case went to the jury against Spinello as the remaining defendant.

On April 25, 1947, according to the testimony of the People’s witnesses, at about eleven o’clock in the morning, two men walked into premises occupied by the Cosmic Radio Corporation in a loft building located at East 135th Street in the county of Bronx. One of them, thereafter identified as appellant Spinello, remained at the door of the loft and the other, described as “ John Doe ”, inquired for Nathan Hyman, the complaining witness. After Hyman was pointed out, this intruder asked him to step into the office, then took a gun from his pocket, saying “ This is a holdup.” He compelled complainant to face the wall. A young lady employed as a bookkeeper, who was seated at a desk in the office, saw and heard what took place there. First the robber demanded the payroll and when told it had not yet arrived he made a hasty but futile examination of the drawers of the desk in the office. Thereupon he searched the complaining witness and took from his person $400 in cash in ten-and twenty-dollar bills. He then told complainant to accompany him through the front door of the loft and to act as though they were conversing in a friendly way. As they approached the door Spinello, who was standing there, joined them, at the same time producing a gun from Ms pocket. Hyman got a look at Spinello and saw Mm for about a minute.

Together with the complainant the intruders walked downstairs and then up two flights. On the way up one of them pulled a ring from the finger of complainant. When Hyman protested, he was struck on the back of the ear with the butt end of a revolver. At this point, a noise like the slamming of a door frightened the two robbers, who after warning complainant to make no outcry, ran down the stairs towards the street. As they were leaving the building they passed the foreman of the factory, who observed ohe of them putting away a gun. This man, according to the foreman’s testimony, resembled Spinello. The complaining witness and the foreman thereupon hastened to a window of the building facing the street and observed the two men fleeing from the main doorway and hurriedly enter a black Chevrolet coupe, the door of which was open. The car got into motion immediately and while it was gaining momentum, its door was closed. Both complainant and the foreman noted the number of the license plate on the veMcle and one of them wrote it down. Immediately after the holdup they gave the police a description of the car and the license number.

Three hours later, in downtown Manhattan, a police officer, Dudley Thompson, noticed two men, Principe and Spinello, in an automobile answering the description and bearing the license number reported by Hyman. Defendant Principe was at the driver’s seat and appellant Spinello was seated alongside of Mm. Officer Thompson covered them with his revolver and placed them under arrest. When searched at the police station Spinello was found to have on his person a wallet containing a registration of the Chevrolet automobile in the name of one Angelo Lubovia of 196 Elizabeth Street, New York City. The officer also found in Spinello’s possession $90 in ten-dollar bills. When questioned by the arresting officer, Spinello disclaimed all knowledge of the robbery and stated that on that morning he had gone to meet his friend Principe at the latter’s home in The Bronx; that he had travelled to The Bronx by train and had gone downtown by train; that he had obtained the use of the automobile in which he was found when arrested from one of the neighborhood boys named Frankie whose last name he did not remember. At the request of this policeman Spinello wrote the name Angelo Lubovia eight times on a sheet of paper and also printed some words. Upon comparing the signature Angelo Lubovia ” on the registration certificate and appellant’s writing on the sheet, the officer asked. Spinello if he had not signed the registration certificate with the name Angelo Lnbovia. This Spinello denied.

Another police officer, Detective John Lloyd, saw appellant Spinello and Principe at the Elizabeth Street station on the day of their arrest and there Spinello told Lloyd that he had been in Principe’s home at 158th Street in The Bronx that morning at about nine o’clock; that he had gone up in the Chevrolet car; that Principe was in bed; that he waited until Principe had dressed and that they then entered the car and he drove downtown with Principe. He denied, however, being in the neighborhood of 135th Street and the Boulevard that morning. Spinello told Detective Lloyd that he was not working at the time of his arrest and that the money found on him had been won at gambling.

Officer Perrill testified that on the day of the arrest he went to 196 Elizabeth Street, made inquiries for Angelo Lubovia, found no one by that name living at that address, and after an extended investigation was unable to discover any person by such a name or anyone who knew a person by that name.

Following the arrest of appellant Spinello and defendant Principe, Nathan Hyman, the complaining witness, saw them on the same day at the Elizabeth Street police station and indicated Spinello as one of the participants in the robbery. When testifying at the trial he identified Spinello on direct examination as one of the robbers, but he also added, ‘ ‘ 1 am not sure, after three years. I thought he was smaller than he is, as a matter of fact.” In response to questions put to him by the court he reiterated that about 6:00 p.m. on the day of the hold-up at the Elizabeth Street station he identified Spinello as one of the two men who had assaulted and robbed him. On cross-examination he stated that he could not swear Spinello was the man he had seen in his place of business.

Appellant did not take the stand and called no witnesses in his behalf.

Upon the foregoing evidence the People contend that they established the guilt of appellant beyond a reasonable doubt. Appellant, on the other hand, urges that the evidence was insufficient to warrant submission of the case to the jury.

We think there was ample proof to sustain the conviction of appellant of the crime charged. Though Hyman testified on cross-examination that he could not positively swear that appellant was one of the robbers, on direct examination he did testify that a few hours after the commission of the crime he had identified appellant Spinello at the police station as one of his assailants. While ordinarily a party may not corroborate or fortify his own witness by showing that on previous occasions he made similar statements, since 1927, as a result of legislation in this State, it is entirely proper to prove that at a former time the witness recognized and declared the present accused to be the person who committed the crime. Section 393-b of the Code of Criminal Procedure (added by L. 1927, ch. 336) reads as follows: When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification.” This legislation was adopted on the recommendation contained in the first report of the Crime Commission of the State of New York, sometimes referred to as the Baumes Crime Commission. The report pointed out (p. 71): “ It sometimes happens that on the actual trial of a criminal because of the fact that he has changed his appearance — as is often done in the criminal world — has either grown a beard, shaved off a mustache or wears spectacles when he didn’t before, or adopts some other device or change in his appearance, that a person who had picked him out in the ‘ line-up ’ at the time of his arrest, or identified him as the man whom he saw at the scene of the crime in question, is quite unable to identify him as the same man some months later, because of this changed appearance, as well as because of the lapse of time.” (Report of the Crime Commission, State of New York, submitted February 28, 1927; N. Y. Legis. Doc., 1927, No. 94.) [Emphasis ours.]

In 4 Wigmore on Evidence [3d ed., § 1130] there is a discussion of the desirability of the rule indicating that -it is for the protection of the accused as well as being of assistance to the prosecution. In fact, Wigmore goes further and suggests that not only should the identifier be allowed to testify but as well the witnesses to the identification.

There was an interval of about three years between the hold-up and the trial. It is of course a well known fact, that time dims the recollection and that when there is a long delay witnesses frequently find themselves unable to testify to facts which were previously clear in their minds. If the method of proof employed here were not to be permitted, one positively identified shortly after the commission of a crime might well gain immunity from prosecution and punishment simply because the lapse of time may have partially effaced the criminal’s image from the mind of the witness (see Underhill on Criminal Evidence [4th ed.], p. 172).

The circumstances of the prior identification in this case might have been fully explored but appellant did not choose to avail himself of the privilege. At the trial, there was no claim made that the man identified by the complaining witness at the police station within a few hours after the robbery was not in fact appellant Spinello nor does appellant make any such argument on this appeal.

In addition to the testimony of the complaining witness the evidence shows that the appellant Spinello was found within three hours after the robbery in the very automobile in which the robbers made their escape. To the police he made two contradictory statements with respect to his meeting Principe on the morning of the crime.

Moreover, Spinello’s handwriting of the signature “ Angelo Lubovia ” as obtained by Officer Thompson showed a striking resemblance to the signature “ Angelo Lubovia ” appearing on the registration certificate in possession of Spinello at the time of his arrest. The jury, accordingly, reasonably might find that the registration certificate of the car in the name of Angelo Lubovia, who was an unknown person, was obtained by Spinello for the purpose of concealing that he was the true owner of the car used to effect escape for the perpetrators of the robbery. Furthermore, Spinello, who was out of work at the time of his arrest, was found to have $90 in ten-dollar bills in his possession, which money he said he had won in gambling, but it will be recalled that the complaining witness testified that the $400 that had been taken from him that morning was in ten- and twentvdollar bills.

As against all of this testimony there was not the slightest contradiction from any source nor was there any proof offered by this appellant through the testimony of any witness as to his exact whereabouts at the time of the commission of the crime. “No evidence was offered by defendant, no fact controverted except by cross-examination and, consequently, nothing remained for the jury except the function of testing the credibility of the People’s witnesses.” (People v. Clougher, 246 N. Y. 106,110.)

The appellant was accorded a fair trial. The charge of the court upon the law, to which there whs no surviving exception, was complete. The guilt of the appellant of this serious crime in our opinion was clearly established.

The judgment of conviction should accordingly be affirmed.

Callahan, J.

(dissenting). The appellant, Peter Spinello, has been convicted of the crime of robbery in thé first degree and sentenced to a term of imprisonment from twenty-five to, thirty years as a second offender. The question presented upon this appeal is whether there was sufficient legal evidence of the identification of Spinello as a participant in the robbery. The witness who attempted to identify Spinello was the complainant, Nathan Hyman.

Hyman first testified to the conduct of a person not arrested, who was the initial actor in the robbery, and when he got to the point in his story where he told of being walked out of his office by this man under the point of a gun, said: As we approached the other man near the door he joined us.” Being asked whether by the other man ” he meant defendant Spinello, Hyman answered in the affirmative.

Apparently under the assumption that the question of Spinello’s identification had been put in issue within the meaning of section 393-b of the Code of Criminal Procedure, Hyman was then interrogated by the District Attorney without objection by defendant’s counsel as to his prior identification of Spinello at the station house on the evening of the day of the' crime. Without giving the circumstances of the identification, Hyman stated that the police had two persons under arrest whom he confronted.' He then testified:

Q. Do you see these two men in court today? A. Presumably they are the same two men.

“ Q. Well, where are they? A. Well, if that is the two men I saw, that is the two men here.

Q. Well, now, look at them. A. I am looking at them.

Q. Did you recognize either one of those, or both of them as the men who were in your place? A. At the time of the Elizabeth Street Station visit I identified one of these two men.

Q. Which one did you identify? A. The shorter of the two (indicating).”

The witness thereupon pointed out Spinello.

Shortly thereafter the witness in answer to a direct question categorically stated that he had seen the defendant Spinello in his place of business at the time of the robbery and described his actions in participating in the crime. In replying to a question by the court as to whether the man whose actions he was describing was Spinello, the witness said: The day I identified him I thought it was Spinello. I am not sure, after three years. I thought he was smaller than he is, as a matter of fact.”

Thereafter under further interrogation by the court as to whether he recognized Spinello at the police station as the man that was at his place of business, the witness answered categorically in the affirmative. The court then asked: “Do you now state he is, or do you think he is, or do you presume he is ’ ’, and the witness stated: “ I said he is, Judge.”

Upon cross-examination the following questions were put and the quoted answers given:

“ Q. You told us that at the present time you are not sure that he, the defendant sitting here, Spinello, was the man whom you saw that day; is that true ? A. That is true.

“ Q. As a matter of fact, as you sit there, Mr. Hyman, you could not swear that the defendant, Spinello, was the man whom you saw in your place- A. As I am sitting here I would not swear.”

As is indicated in the prevailing opinion, there was additional testimony by the police officers of contradictory stories told to them by Spinello after his arrest as to his whereabouts on the morning of the crime, but no admission is claimed to have been made by Spinello to the police that he was at the place where the crime was committed. There was the fact of Spinello’s presence several hours later in the car claimed to have been used in the crime, though there appears to be a gap in the proof as to the license number of the car. It was established that Spinello had $90 in cash which he claimed to have won at gambling. There was also testimony from which the jury could find, that the application for registration of the car was in a fictitious name forged by the defendant Spinello. The latter was a circumstance strongly tending to connect Spinello with ownership or control of the car, if not with the robbery. However, taking all of these surrounding circumstances together, we do not think that they would support a conviction without some sworn testimony that Spinello was at the scene of the crime, and in the premises of Hyman.

Thus, it becomes essential for us to consider the probative force and sufficiency of the evidence with regard to identification of Spinello,. including the testimony of Hyman as to the prior identification at the station house.

Prior to the adoption of section 393-b of the Code of Criminal Procedure, the testimony of Hyman concerning prior identification would not have been competent under the present circumstances (People v. Jung Hing, 212 N. Y. 393). Under the common law such proof would have been deemed an unsworn self-serving declaration. Even when under the common law there were circumstances warranting receipt of proof of prior identification as a prior consistent statement, it was “not admitted to prove or disprove any fact involved in the issue on trial, but simply to corroborate or support the credibility of the witness who may be in some manner impeached.” (Maitland v. Citizens’ Nat. Bank, 40 Md. 540, 559; People v. Jung Ping, supra, p. 402.)

There was a somewhat broader rule in effect in the Federal courts, and a still wider rule advocated by a learned text written on the law of evidence (Di Carlo v. United States, 6 F. 2d, 364: 2 Wigmore on Evidence [2d ed.], § 1129). The Baumes Commission in its report recommending the adoption of the new section made some reference to this divergence in regard to the views of the Federal and State courts as to the receipt of proof of prior identification. But it is quite clear from the language of the new sectiqn that the Legislature did not intend to adopt the Federal rule in its entirety, for the Federal courts contrary to the new statute, permitted persons other than the one who had made prior identification to testify thereto (People v. Infantino, 224 App. Div. 193). Furthermore, even the Federal courts recognized that there was some limitation to the instances where the proof might be used, i.e., where there was a question raised as to the motive of a witness to fabricate or other challenge for bias (Di Carlo v. United States, supra).

In construing another statute permitting introduction of proof of prior inconsistent statements by a witness where such statements were made in writing or under oath (Civ. Prac. Act, § 343-a; see, also, Code Crim. Pro., § 8-a) our Court of Appeals held that proof of such statements would not constitute substantive evidence or evidence in chief (Matter of Roge v. Valentine, 280 N. Y. 268). There would seem to be less reason for considering statements concerning an unsworn prior oral identification as affirmative or substantive evidence. It is clear, at least, we think, that section 393-b does not mean that proof of prior identification standing alone would support a judgment of conviction. We think that the statute means that where identification is at issue and a witness is in some degree subject to a challenge for bias or inconsistency, proof of prior identification may be received even though the circumstances might not be such as to warrant proof of prior consistent statements under common-law rules of evidence. But as such proof would. merely relate to a prior unsworn statement the jury could merely give it such weight as it deemed proper upon the question of credibility of the witness or as corroborating or supporting other substantive evidence.

We deem that the substance and effect of Hyman’s testimony was that he was uncertain at the trial as to whether Spinello was one of the men he saw in his place of business participating in the robbery. We think that he also intended to say that he was uncertain upon the trial that the man he saw at the station house was the defendant in court though there did not seem to be any particular issue made of that point. The question remains as to whether Hyman intended to swear that he was presently certain that the man he saw at the station house was one of the robbers. This we concede would constitute substantive proof of identification. Though at one time Hyman did appear to so testify, he made contrary or equivocal statements on this score at other points in his testimony. Evidence of identification should consist of strong and cogent proof (People v. Cassidy, 160 App. Div. 651). We fail to find that degree of proof here. The testimony is contradictory and far from clear. There is no proof whatever as to the circumstances under which the alleged prior identification in the station house was made.

In its charge to the jury the court made no attempt to distinguish between the probative force of extrajudicial statements as to prior identification and present sworn, testimony.

In view of the state of the record on the essential point of identification, we think that in the interest of justice a new trial should be ordered.

The judgment should be reversed and a new trial ordered.

Glen non, J. P., and Shientag, J., concur with Cohn, J.; Callahan, J., dissents and votes to reverse and grant a new trial, in an opinion in which Dore, J., concurs.

Judgment affirmed.  