People v. Albero

O’Malley, J. On the evening of February 19, 1927, a robbery of a clothes shop located in Bronx county was committed by four men. Three of five eye witnesses who were present were called by the People, but no one of them was able to identify either of [443] the two defendants or their codefendant, one Scarglato, who was acquitted by direction at the close of the People’s case. The trial against the appellants proceeded upon the count of robbery in the first degree, the counts of larceny, assault and receiving stolen property having been withdrawn. The conviction of the appellants rests upon the presumption arising from an alleged exclusive and conscious possession of some of the proceeds of the robbery immediately after its occurrence. Only a part of the clothing stolen is claimed to have been found in their possession. Some articles of jewelry, consisting of stickpins and a watch and chain, taken from some of the victims, were not so found. The arrest was made about twenty-four hours after the robbery occurred. The defendants were apprehended while in the act of wrapping up some of the suits of clothes in a ground floor apartment at No. 343 East One Hundred and Seventeenth street. While they were alone in the apartment at the time, there was no proof that they leased or controlled it or that they resided there. On the other hand, they testified that they resided elsewhere and it was fairly inferable from the evidence that the apartment was occupied and controlled by others. The defendants at all times denied knowledge of or participation in the robbery and told the arresting officers that they came to look at the suits of clothing for the purpose of making a purchase, having been told that there were suits there for sale. They claim to have been in the act of examining some of the suits when the officers entered. We may concede that the jury were warranted in believing that the defendants were found in the act of wrapping up the suits of clothes, rather than in the act of examining them for the purpose of making purchases. We may also concede that their strong resistance to arrest and their contradictory statements in support of their alibis, were indicative of guilty knowledge. But the defendants have not been convicted of criminally receiving stolen property, knowing it to have been stolen. They stand convicted of a robbery which is claimed to have taken place in the presence of-five witnesses, no one of whom has identified either defendant as a participant therein; and this, notwithstanding that the crime took place in a well-lighted room and under circumstances which gave to the witnesses opportunity to observe closely the faces, build and manner of dress of the criminals. Common experience teaches that witnesses to crimes of this character do not so easily forget the faces of those who rob them at the point of a gun. In these circumstances we think that any inference of guilt of the robbery which arose from possession of some of its [444] proceeds was repelled and overcome, and that the verdict convicting the appellants was against the weight of the evidence. (People v. Galbo, 218 N. Y. 283, 290.) It follows that the judgment of conviction should be reversed and a new trial granted. Dowling, P. J., and McAvoy, J., concur; Finch and Martin, JJ., dissent.