People v. Britt

52 A.D.2d 811, 383 N.Y.S.2d 602, 1976 N.Y. App. Div. LEXIS 12621

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1976
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County, rendered on March 7, 1974, convicting defendant after trial before Drohan, J., and a jury, of the crimes of robbery in the second degree, three counts of robbery in the third degree and attempted robbery in the third degree, modified, on the law, to the extent of remanding this matter for resentencing, in accordance with section 70.00 (subd 3, par [b]) of the Penal Law and otherwise affirmed. This defendant was charged with robbing the same individual, at the latter’s small grocery store, on four different occasions. In view of the repetition of defendant’s acts the subject premises were staked out and, when defendant returned thereto, he was seized. We agree with our dissenting colleague that the Trial Justice erred in failing to charge in accordance with CPL 300.10 (subd 2). We cannot understand why it was not done. The majority agrees that, under ordinary circumstances, this error might well have called for reversal. However, in view of the clear and convincing proof of defendant’s guilt, the conviction should not be disturbed. In arriving at this conclusion we rely on the cases of Chapman v California (386 US 18) and People v Crimmins (36 NY2d 230). In the last-cited case the prosecutor, in summation, commented on the defendant’s failure to testify in her own behalf. In the court’s opinion we find the following (p 237): "All of the members of the court agree that such error calls for reversal and a new trial unless it was harmless under the test for harmless constitutional error laid down by the Supreme Court of the United States, namely, that there is no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt”. Applying this reasoning to the case at Bar, we are convinced that there is no reasonable possibility that the verdict of the jury would have been different if the error had not occurred. Therefore, the conviction should stand. We believe that the trial court failed to specifically articulate its reason for imposing a minimum sentence herein, as required by the Penal Law and, for that reason, we are remanding this matter for the purposes of resentencing only. Concur—Markewich, J. P., Lupiano and Capozzoli, JJ.; Kupferman, J., dissents in part in a memorandum and Birns, J., dissents in a memorandum, as follows: Kupferman, J. (dissenting in part). I would affirm. To the extent that there is any basis for reversal, it is well articulated in the dissent by my colleague, Birns, J. However, the court did charge that the defendant is at all times presumed innocent, and that the burden is upon the People to establish guilt beyond a reasonable doubt, and further that the "defendant is under no obligation to present any evidence.” In view of the overwhelming evidence of the defendant’s guilt, the failure to charge in accordance with CPL 300.10 (subd 2), in this instance, does not mandate reversal. The requirement for articulation of the basis for imposing a minimum sentence (Penal Law, § 70.00, subd 3, par [b]), in this situation should receive short shrift. There was no mystery about the reasons for the stated minimum of five years as part of a 5- to 15-year sentence on the highest charge, with lesser concurrent sentences on the remaining convictions. (People v Burke, 39 NY2d 729; People v Esteves, 51 AD2d 901.)