People v. Caraballo

174 A.D.2d 381, 570 N.Y.S.2d 575, 1991 N.Y. App. Div. LEXIS 7960

Opinion

—Judgment, Supreme Court, New York County (Rose L. Rubin, J.), entered July 5, 1988, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him as a predicate felon to an indeterminate prison term of from 3 to 6 years, unanimously reversed, as a matter of discretion in the interest of justice and the matter remanded for a new trial.

Defendant and his brother, co-defendant Jose Caraballo, were jointly tried under an indictment charging both of them with robbery, and charging Jose only with criminal possession of a weapon in the fourth degree. Although the complainant did not state that he was robbed at knife-point, a police officer testified that upon approaching the scene of the robbery, he saw a shiny object in Jose Caraballo’s hand. Thirty dollars and a switchblade knife were recovered from Jose Caraballo’s pocket.

On the appeal of co-defendant Jose Caraballo, this Court reversed and remanded for separate trials on the robbery and weapon possession counts on the ground that these counts were not properly joinable under CPL 200.20 (2) (b) (People v Caraballo, 162 AD2d 214). We believe that defendant was also deprived of a fair trial by the evidence of his co-defendant’s possession of a knife.

In view of the foregoing, we do not address defendant’s other contentions. Concur—Rosenberger, J. P., Kupferman, Ross, Asch and Kassal, JJ.