People v. O'Brien

Capozzoli, J. (dissenting).

I am not in accord with the conclusion reached by the majority and the reasons contained in its opinion to support the reversal of this conviction. The very facts set forth in its opinion unquestionably justify the guilty verdict reached by the jury. Even in its reasoning, to a great extent, the majority supplies legal arguments in support *450of the jury’s verdict. I might well rest on the contents of the majority opinion to support my own conclusion that there was ample evidence before the jury to sustain its verdict.

Let us start off with the fact that this defendant, with two others, who were convicted with him, went to the home of the complainant, Vaiano, in order to collect money, which the defendant testified was coming to him and to the codefendant, Wilson, for stolen articles and unregistered cigarettes which were allegedly sold to Vaiano on prior occasions. That is a rather strange occurrence, that they should decide to go to Vaiano’s house, at 1:30 in the morning, to collect moneys. It is conceded that there was no money coming to the defendant, McClendon. He just went along for the ride at this time of the night.

The majority’s opinion amply sets forth what took place when the trio reached Vaiano’s house. Suffice it to say that the evidence justifies the conclusion which the jury must have reached to the effect that, when the defendant was denied admission by Vaiano, who had not seen the other two defendants, the screen door which separated Vaiano from these defendants was cut by one of them. After the defendant, McClendon, reached through the cut screen and opened the door from the inside, O’Brien and Wilson followed him. It must be remembered that McClendon put a butcher knife in Vaiano’s stomach. Of course, this was denied in toto by the defendant, but, is that not a reason why jury trials are held, so that the truth may be ascertained? It should also be noted that the defendant denied that either of his two codefendants had knives.

The purpose of breaking into this complainant’s home, in the middle of the night, was to get money, which was allegedly owed to the defendant for his stolen goods. Were his actions consistent with those of one who was peacefully trying to collect what was due to him, or was he out to get his money in any way that he could?

It is interesting to note that the majority, although they support the conviction of the two codefendants, appears to take seriously the possibility that the defendant was intimidated by the codefendants. Note this language in the majority opinion: "He implies that he was as intimidated by them as were the robbery victims”. That is a strange observation, because a reference to the record clearly discloses that this defendant denied having been attacked or threatened by the *451codefendants at any time. And, while we are on the subject, there was never any claim at the trial that the defendant’s part in this crime was the result of . duress against him on the part of his codefendants. In that connection attention should be called to the fact that duress is an affirmative defense and the burden of proof is upon the defendant to establish same by a preponderance of the evidence. Subdivision 1 of section 40.00 of the Penal Law reads in part:

"1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.”

A reference to subdivision 2 of section 25.00 of the Penal Law, discloses the following: "When a defense declared by statute to be an 'affirmative defense’ is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.”

The majority has written "from O’Brien’s position between Wilson and McClendon, it is possible to infer that he continued to be a victim of their [codefendants’] violence”. There is no possible justification in the entire record for this inference. And, of course, the jury rejected it, else it would have acquitted this defendant.

While it may be true that the defendant did not participate to as great an extent as his codefendants, the evidence clearly shows that he was part and parcel of their activities, having started with them, gone with them to the Vaiano house, having entered with them when he was unable to have the door opened to his ringing and knocking, as a result of which the screen door was cut, remaining in the place during the robbery and running away with them from the scene, clearly mark him as a willing participant in this entire situation.

Let us look at page 453 of the record where we find the following:

"Q. When Mrs. Vaiano said, I want you to help me push Wilson out of the apartment or the house, what did you do?
"A. I didn’t want nothing to do with it, because they owe me money and I was sitting down there to get my suitcase and my money right”.

In that event, was this not a perfect occasion for this *452defendant to say to the court and jury that the reason why he would not help Mrs. Vaiano was because he was afraid of his codefendants? But, there was no such claim, because the truth is, whatever this defendant did, he did of his own free choice and not because of any fear or duress.

Although there was ample testimony to indicate that each of his codefendants had a knife, and both codefendants used those knives to instill fear in their victims to the extent of having cut Mr. Vaiano, this defendant testified he saw no knives, and there were no assaults by his codefendants against the complainants.

What was the defendant McClendon’s function in this whole episode? The answer is found at pages 518 to 519 of the record:

"Q. Did you hear Joe McClendon say anything at this time?
"A. Yes.
"Q. What did Joe say?
"A. He said give him his money.
"Q. Didn’t you say yesterday on direct examination 'you better give him the money’ when asked what Mr. McClendon said?
"A. He said * * * he said give him the money.
"Q. Well, was it give him the money or you better give him the money?
"A. I don’t remember.”

Again, some one might try to spell out from this record that whatever might have been the original intention of the defendant when the trio started out to rob the complainants, perhaps the defendant changed his mind while the robbery was going on. Of course, there is no indication of that, and it must be remembered that the defense of renunciation is another affirmative defense which is spelled out in subdivision 1 of section 40.10 of the Penal Law: "In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant’s guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.”

The majority argues that the inferences which may be *453drawn from the facts in the case are as consistent with innocence as with guilt. This principle of law does not apply in the case at bar. We are not dealing with a case based upon circumstantial evidence. The record presents a situation where witnesses for the prosecution testified to what they saw and heard as to how the defendants got into the apartment and what they did once in there. The evidence presented is direct evidence and it was up to the jury either to believe it or refuse to believe it. Having chosen to believe the People’s evidence, this court should not interfere with the conclusion reached by the jury.

I am satisfied from an examination of the record and the reasons above given, together with those set forth in the majority opinion, that the conviction of the appellant was based on sufficient legal evidence to establish his guilt beyond a reasonable doubt and the verdict of the jury should not be disturbed.

Markewich, J. P., and Murphy, J., concur with Lynch, J.; Kupferman and Capozzoli, JJ., dissent in an opinion by Capozzoli, J.

Judgment, Supreme Court, Bronx County, rendered on August 30, 1973, reversed, on the law, and the indictment dismissed.