
    The People of the State of New York, Respondent, v Joseph Gruttola, Appellant.
    Argued October 5, 1977;
    decided November 21, 1977
    
      POINTS OF COUNSEL
    
      Lynn W. L. Fahey and William E. Hellerstein for appellant.
    I. The People failed to establish appellant’s guilt beyond a reasonable doubt. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10.) II. A new Wade hearing is required since the original hearing, at which the People refused to divulge the names of any of the witnesses who viewed the lineup, was inadequate and left unexplored substantial possibilities that the civilian identifications were based upon suggestive procedures. (Matter of James H., 
      34 NY2d 814; People v Harrington, 31 NY2d 785; People v Rahming, 26 NY2d 411; Sheppard v Maxwell, 384 US 333; Foster v California, 394 US 440; United States v Wade, 388 US 218.) III. Appellant’s cross-examination about an incident which bore surface similarities to the instant crime and had resulted only in charges which were later dismissed was prejudicial, and had the improper purpose of suggesting that appellant had a propensity to commit the crime for which he was on trial. (People v Sandoval, 34 NY2d 371; People v Caviness, 38 NY2d 227; People v Fiore, 34 NY2d 81; People v Schwartzman, 24 NY2d 241; People v Cook, 37 NY2d 591; People v Rahming, 26 NY2d 411; People v Van Gaasbeck, 189 NY 408; People v Arthur, 22 NY2d 325.) IV. The court’s supplementary instructions, which were directed to a single hold-out juror and stressed the duty under his oath to reach a unanimous verdict without ever mentioning his right to adhere to his honest convictions, were coercive and deprived appellant of his fundamental right to a fair trial. (People v Faber, 199 NY 256; People v Albanese, 19 NY2d 965; People v McLucas, 15 NY2d 167; People v Miles, 289 NY 360; People v Bradner, 107 NY 1.)
    
      Robert M. Morgenthau, District Attorney (Ann Elizabeth Lewis, Peter L. Zimroth and Robert M. Pitler of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v Williams, 6 NY2d 18; People v Plummer, 36 NY2d 161.) II. Defendant had a fair opportunity to challenge the identification evidence at the Wade hearing. He is not entitled to relitigate the issue. (United States v Wade, 388 US 218; People v Tutt, 38 NY2d 1011.) III. Gruttola’s denial of prior misconduct makes irrelevant the cross-examination of him as to an incident involving possession of a gun. Moreover, the issue of the prejudicial nature of such cross-examination was not preserved as a legal issue for appeal. In any event, the cross-examination was proper. (People v Caviness, 38 NY2d 227; Spencer v Texas, 385 US 554; People v Tutt, 38 NY2d 1011; People v Sandoval, 34 NY2d 371; People v Dick-man, 42 NY2d 294.) IV. The court properly instructed the jury as to their duty to discuss their opinions and áttempt to reach a verdict. (People v Fonseca, 36 NY2d 133; People v Reynolds, 25 NY2d 489; People v Simmons, 22 NY2d 533, 393 US 1107; People v Faber, 199 NY 256; People v Randall, 9 NY2d 413; People v Albanese, 19 NY2d 965.)
   OPINION OF THE COURT

Gabrielli, J.

The defendant stands convicted of robbery in the first degree, two counts of assault in the first degree, three counts of attempted assault in the first degree and possession of a weapon as a felony, all following a jury trial. These charges stem from the armed robbery of O’Lunney’s Steak House in New York City, during which a patron and a police officer were shot by the robber. The Appellate Division unanimously affirmed the convictions.

In the early morning hours of December 21, 1972 Officers Woodrow Dury and Dennis Dowd were on anticrime patrol in Manhattan when they spotted a suspicious looking person who was walking back and forth in an unusual manner. Officer Dury noted that the man was not well dressed, wearing a hat that was a "little small”. The man was later described as wearing a topcoat and a hat pulled down over his forehead. The officers followed the man to O’Lunney’s Steak House. During the course of this investigation they were joined by Officers James Ward and Richard Rossi who were also on anticrime patrol. Officer Rossi parked his patrol car and waited while Officer Ward joined the other policemen, following the suspect into the restaurant. Upon entering the premises the officers positioned themselves close to the suspect in a well-lighted spot near the front bar area which, the testimony shows, provided them, with a good opportunity to observe.

After ordering a drink the suspect walked over to the center of the bar, looked at the open drawer of the cash register, and started to walk away when suddenly he pulled a gun and ordered all present to the back of the bar. Looking directly at Officer Dury, he declared "This is it. This is a stick-up * * * get in back big timer”. Most of the patrons started to withdraw to the back of the bar and the officers moved to a side alcove.

Edward Blagden, one of the customers at the bar, refused to comply with the demand to back up and as he edged slightly closer, the gunman shot him through the right thigh. Blagden fell to the floor. Eammon Doran, the bartender, startled by the shot, looked up and recognized the gunman, who was then repeating his order to "get in back”. The shot also drew the attention of Shaun Flynn, another customer, who looked at the gunman and recognized him from earlier in the evening when Flynn had been sitting about five feet from him at the bar.

As people were moving back, Officer Dowd stepped out from the alcove and lunged at the robber and ordered him to drop the gun. But the gunman pulled away and shot Dowd in the stomach, saying "Take that, you —”. The gunman then ordered Dowd, wounded and suffering, to go to the cash register and empty the money drawer. Grabbing the money, approximately $280, the gunman exited the bar, warning everyone to remain still for five minutes. Officers Dury and Ward started out of the alcove to pursue the gunman who suddenly reappeared, repeated his warning, and then again left.

Officers Dury and Ward immediately pursued the gunman into the street where they saw him, still wearing a hat, running across 49th Street. Rossi, who was still waiting in the patrol car, joined his companions. The gunman crossed Second Avenue and turned east on 50th Street. As the officers reached the corner of Second Avenue and 50th Street, Dury used his walkie-talkie to call for assistance. Officers Ward and Dury then called to the fleeing gunman, "Police, drop the gun”. In response the gunman turned and fired a shot at the officers who each returned a shot. Within seconds, a patrol car operated by Officers Robinson and Moeser answered the call for assistance and Officer Ward pointed to the gunman who was continuing his flight down 50th Street. The patrol car took chase and finally stopped the gunman at the corner of First Avenue. The man resisted but the police subdued him, handcuffed him and placed him in the back of a police car.

During the chase, Officer Dury who was pursuing on foot, had seen the man drop his gun and fling the money away. Likewise, Officer Moeser from his position in the patrol car had observed the gunman throw certain items away. Moeser later returned to the spot where he had seen something tossed aside and recovered money which was unquestionably identified with the robbery. The gun was recovered on the north side of 50th Street by Officers Ward and Dury. Finally, the gunman’s hat, which had been knocked off during his struggle with the police, was thrown into the police car with the suspect.

Basically, the acts of the robbery and the shooting are undisputed. Defendant contends, however, that this is a case of mistaken identity. During trial defendant testified that he had come downtown for dinner and a show, his wife remaining at home to complete various chores in preparation for the upcoming holidays; that at 2:30 a.m. he returned to his car only to find that he had a flat tire. Additionally, he stated that after repairing the tire he started to drive home down 50th Street when he noticed an antique store at the corner of Second Avenue; that although it was after 3:00 a.m. he parked his car and walked to the store to window shop because his wife was interested in an antique lamp. He further testified that he then heard a shot and saw a man. waving a gun. Thinking this to be a mad gunman, he allegedly ran down 50th Street to avoid a dangerous situation when he spotted a police car and ran towards it to report the shooting, and that the officers grabbed and arrested him. In support of his version of the facts the defendant presented a number of respected witnesses who attested to his good character.

On this appeal defendant asserts that the People failed to prove his guilt beyond a reasonable doubt. Essentially, the issue is one of identification and the identification testimony was extensive. At trial, Police Officers Dury, Dowd and Ward identified the defendant as the man they followed into the bar, who had committed the robbery and who was later apprehended in the street. In addition three civilian witnesses identified defendant as the robber and assailant. Witness Blagden, who looked directly at his assailant when he was shot while in the bar, also identified defendant. Likewise, Flynn who had been sitting within five feet of the gunman in the bar, pointed to defendant as the man who committed the robbery. And the bartender, Eammon Doran, who had served defendant a drink, corroborated this identification testimony. Even one of the defense’s own witnesses, Feti Island, a customer in the bar on the evening in question, to the apparent surprise of everyone made an in-court identification.

Officer Moeser, who joined in the pursuit following the robbery, testified that he observed the defendant throw away the gun and money later identified with the robbery, which further linked the defendant to the robbery and the shooting.

The defense places great weight on the fact that the witnesses testified that during the robbery the gunman was wearing a hat pulled down over his forehead. A hat, identified as the one the robber wore, was produced at trial. The defendant claimed that he never wore a hat and that this particular hat could not be his because it was too small. This issue was placed squarely before the jury and in fact, the defendant demonstrated the fit of the hat by putting it on during the trial.

The defense contends that the gun recovered and identified as the one used in the robbery, was found with six live bullets in it. The gun was designed to hold eight shells and the testimony indicated that the gunman fired three times. The defense asserts that these facts raise doubts about the credibility of the police testimony. There was, however, expert testimony that the gun could be overloaded to hold nine bullets. Finally the defense raises a number of other minor inconsistencies in testimony in order to discredit the prosecution’s witnesses.

As noted, there were seven witnesses who identified the defendant as the man who robbed the restaurant, and shot the two people. These witnesses consisted of three police officers, three civilians introduced by the prosecution and one civilian introduced by the defense, all of whom agreed that the defendant committed the crime. These witnesses testified in detail, subject to extensive cross-examinations and the defense proof reflected solely upon their credibility. Issues of credibility are primarily for the jury (People v Erwin 42 NY2d 1064; People v Richardson, 41 NY2d 886, 887) and there was clearly sufficient evidence in quantity and quality to send this case to the jury for a verdict (People v Joyiens, 39 NY2d 197, 203). The allegations of the defendant merely challenge the credibility of the witnesses and place in dispute only findings of fact made by the jury and unanimously affirmed by the Appellate Division. But this court is without power to review determinations of fact unless it can be said, as a matter of law, that they are unsupported, or that they are incredible (NY Const, art VI, §3; People v Oden, 36 NY2d 382, 386; People v Leonti, 18 NY2d 384, 390-391; Cohen and Karger, Powers of the New York Court of Appeals, § 198, p 742). By no stretch of the imagination can it be said that the testimony of all of these witnesses was incredible as a matter of law and thus, since the Court of Appeals, by constitutional constraint, is only a court of law, we may not disturb the findings made below. Neither, of course, does this court have the discretionary power of the Appellate Division to review the facts (CPL 470.15). We are thus confined by the limits of our jurisdiction, which we may not enlarge in violation of the constitutional proscription placed upon this court. In view of the overwhelming identification testimony, we cannot say that the order of the Appellate Division was improperly made and the jury verdict improperly reached.

Before trial defendant moved to suppress identification evidence because of alleged improprieties in the pretrial identification procedures. A. pretrial hearing was held to determine whether the identification testimony of the civilian witnesses was based on an impermissibly suggestive lineup (United States v Wade, 388 US 218; People v Harrington, 31 NY2d 785, 786; People v Logan, 25 NY2d 184, 188). Defendant’s counsel requested at the lineup that an independent photographer be permitted to photograph the lineup, that a stenographer be present and that defense be given the names of all the witnesses present. These requests were denied by the prosecutor and the defense contends that this denial constitutes reversible error.

There is no evidence that the lineup procedure employed by the police was in any way prejudicial or suggestive. Defendant’s counsel was present during the lineup and had a full and complete opportunity to observe the procedure used. Photographs, which were made available to the defendant, were taken of the lineup and introduced into evidence at the hearing. Finally, at the pretrial hearing the court ordered that the names of all witnesses who participated in the lineup, including those who were unable to make an identification, be turned over to defendant’s counsel. These, too, were made available to defendant. None of defendant’s complaints speak directly to the issue whether the lineup was suggestive, and the hearing court found no such evidence. Under the circumstances the motion to suppress was properly denied (see People v Blake, 35 NY2d 331, 340; People v Logan, supra; People v Reeves, 49 AD2d 537, affd 39 NY2d 1047).

We do not reach the question of the impropriety of the supplemental charge since no objection or exception was taken and thus the issue was not preserved for our review (People v Fonseca, 36 NY2d 133, 137). We have examined the other contentions, not seriously pressed, and find them to be without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Jones, J. (dissenting).

With full respect for my associates in the majority, I must observe that they misconceive and fail to address the only real contention which defendant has persistently pressed throughout the entire course of this criminal proceeding and which has troubled every Judge who has had any part in this case before it reached our court—is this a case of horrendous misidentification because, for reasons which may be inferred, the attribution of guilt to this defendant had been predetermined? If there were no more to the case than is recited in the majority opinion I would be an entirely satisfied member of that majority. But there is more, and it is disturbing and troubling to the degree that I must dissent. The question goes to the heart of our criminal justice jurisprudence, and is not insulated from our responsibility of review by the intervention of a jury verdict for which, in a narrow gauge, it may perhaps be said that there was sufficient evidence, when the record as a whole demonstrates that the verdict cannot stand.

In this most unusual case several factors converge to impel me to the conclusion that, as a matter of law, this defendant’s guilt has not been established beyond a reasonable doubt. Indeed, I am persuaded that it very early became impossible for this defendant to have a fair, objective trial.

It all started when, although at one turn in their chase they had lost sight of the fleeing gunman, the police had administered a brutal beating to defendant as they arrested him. (This may have been understandable in human terms because to their knowledge a fellow undercover officer had just been shot in the abdomen in cold blood and then, severely wounded, had been forced by the gunman to drag himself to open the cash register at O’Lunney’s Steak House.) There was immediate and widespread publicity as to the details both of the shooting and of defendant’s capture as well. Publicity and coercive attention escalated further when defendant was released on only $500 bail. To have thrashed even a guilty man mercilessly would have been hard enough to justify; to have it turn out that the man so cruelly beaten might be innocent would have been intolerable to police and community alike. These circumstances, not surprisingly, operated to expose the various law enforcement agencies and even the media to temptation to prejudgment which was thereafter beyond repair or recall. There was pressure, almost irresistible, quickly and surely to hang this crime on someone; and, after all, defendant had been on the scene and at the critical moment, and the police had set upon him as though there was no doubt as to his guilt.

The very extensive, detailed and persuasive testimony of impressive character witnesses as to defendant’s prior character, habits of general conduct, dress and speech and reputation as a business and family man of long standing was wholly inconsistent with any belief that this was the man who had committed the crimes of which he was charged. On the other side, the identification testimony, while it surely might have been sufficient in the normal case, was not strong, and this was not a normal case. All identifications, other than by the interested police, were based on brief observations in a very dark, crowded bar by men who had been drinking heavily. The witnesses could have been exposed to impermissible identification procedures, but defense counsel was prevented from exploring this possibility. The police refused to permit the attorney at the station house lineup to make a transcription or to photograph the lineup. The prosecution had refused to divulge the names of the identifying witnesses. It was only after the conclusion of the pretrial identification hearing and the denial of the motion to suppress that the court ordered their disclosure. By these means effective inquiry and assessment as to the opportunities for independent source identification and the possibility that there had been improperly suggestive prelineup procedures was frustrated. In this circumstance the untested identification testimony could never be said to be strong.

Throughout the trial there occurred a continuing series of individually minor but genuinely disconcerting events, each of which singly invited some doubt that defendant was in fact the assailant:—the ill-fitting hat dropped by the fleeing gunman against the overwhelming testimony that defendant never even wore a hat; the police testimony of the monotonous, four-letter obscenity repeatedly uttered from his stretcher by defendant whose acquaintances said he never swore or cursed; the necessity that there have been a ninth round in what was normally an eight-cartridge pistol to explain the remaining six live rounds and to jibe with the proof that the gunman had fired three shots; the absence in a case of this special significance of any proof or explanation as to possible fingerprints on the gun; the failure of the prosecutor to introduce or to make available the results of the paraffin test performed on defendant. That a savage crime had been committed there can be no doubt; that this defendant was its perpetrator is a wholly different matter.

Recurring misdoubt has been evoked at each stage of the judicial consideration of this case. First, bail was fixed at an absurdly low figure for one charged with the crimes for which defendant was arrested. The two-hour resistance of the holdout juror to what can only be characterized as coercive supplemental instructions was unusual. Then, on pronouncing sentence the Trial Judge articulated his own misgivings. "[V]ery frankly, I cannot in good conscience reconcile the actions of this defendant, resulting in this conviction, with his background. It’s almost impossible to see how he got himself involved in the situation for which he stands before this bar today. * * * If I did not have a psychiatric report from the clinic which reveals to this Court that there are no findings of emotional illness or psychiatric recommendations, I would be inclined to feel this defendant is a schizophrenic and he’s been living or attempted a Dr. Jekyll and Mr. Hyde life, because one cannot possibly reconcile his actions on one behalf with that of the other.” The Appellate Division in affirming defendant’s conviction, wrote (53 AD2d 821): "Any difficulty in reconciling the apparent inconsistency between the crimes charged against defendant and his prior character, habits and reputation was resolved by the jury after a trial that we find free of any prejudicial error. Nevertheless, we suggest that the inconsistent factors above mentioned should appropriately be given early scrutiny by the Parole Board toward ameliorating the consequences of any claimed miscarriage of justice arising out of the conviction(Emphasis added.)

The combination of all these factors, in impact greater than the sum of their individual meanings—in truth a synergism— impels me to the conclusion that the proof in this case was insufficient, as a matter of law, to convict defendant beyond a reasonable doubt. In this circumstance it becomes our judicial responsibility to set aside defendant’s convictions. "This court has for a long time and still does review a record in a criminal action as a whole and is empowered and obliged to conclude on a deficient record that guilt has not been established beyond a reasonable doubt as a matter of law [citations omitted].” (People v Santos, 38 NY2d 173, 175-176; People v Reed, 40 NY2d 204, 208.) One is also agonized by the recollection of the eventually conceded misidentification of the defendant in People v Whitmore (28 NY2d 826). If there be a miscarriage of justice here it cannot be ameliorated by Parole Board action as the Appellate Division suggested. The responsibility is judicial on this record.

Accordingly, for the reasons stated I dissent and would reverse the order of the Appellate Division, vacate the judgment of conviction and dismiss the indictment.

Judges Jasen, Fuchsberg and Cooke concur with Judge Gabrielli; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Breitel and Judge Wachtler concur.

Order affirmed. 
      
       A $50 bill recovered by the police had been marked, because of its uniqueness, by the bartender earlier that evening.
     