People v. Rosa

Appellate Division of the Supreme Court of New York

People v. Rosa

51 A.D.2d 923, 381 N.Y.S.2d 88, 1976 N.Y. App. Div. LEXIS 11608

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 1976

StatusPublished

This text of 51 A.D.2d 923 (People v. Rosa) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Rosa, 51 A.D.2d 923, 381 N.Y.S.2d 88, 1976 N.Y. App. Div. LEXIS 11608 (N.Y. Ct. App. 1976).

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Opinion

Judgment, Supreme Court, New York County, rendered October 11, 1973, convicting defendant, upon a jury verdict, of robbery, first degree; assault, second degree; grand larceny, third degree; and possession of a weapon as a misdemeanor, unanimously modified, on the law, to the extent of reversing the convictions on the grand larceny, third degree, and possession of a weapon as a misdemeanor counts, vacating the sentences imposed thereon and dismissing those counts of the indictment and, as so modified, the judgment is affirmed. The District Attorney concedes that under the theory of the crime put forth, and the facts proved, in this case, the counts of grand larceny in the third degree and possession of a weapon as a misdemeanor were lesser included concurrent counts to robbery in the first degree (see People v Pyles, 44 AD2d 784). The reversal and dismissal of the grand larceny and weapon counts do not affect the validity of the robbery conviction (see People v Mulligan, 29 NY2d 20, 24; People v Chestnut, 26 NY2d 481, 491-492). Study of the record discloses that the trial court did not err in refusing to declare a mistrial following the opening remarks by counsel for codefendant James Williams. No reference in these remarks was made to defendant-appellant Rosa and no damaging comparison was drawn between Williams’ willingness to testify and Rosa’s failure to do so. The remarks were imbued with the denial of culpability on Williams’ part and no attempt was made to cast Rosa as guilty. Further, even assuming some error in these remarks by counsel, the trial court immediately issued curative instructions which served to minimize any possible prejudice to defendant-appellant. The remaining contentions advanced by defendant Rosa have been examined and found to be without merit. Concur —Kupferman, J. P., Lupiano, Lane, Nunez and Lynch, JJ.

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Judgment, Supreme Court, New York County, rendered October 11, 1973, convicting defendant, upon a jury verdict, of robbery, first degree; assault, second degree; grand larceny, third degree; and possession of a weapon as a misdemeanor, unanimously modified, on the law, to the extent of reversing the convictions on the grand larceny, third degree, and possession of a weapon as a misdemeanor counts, vacating the sentences imposed thereon and dismissing those counts of the indictment and, as so modified, the judgment is affirmed. The District Attorney concedes that under the theory of the crime put forth, and the facts proved, in this case, the counts of grand larceny in the third degree and possession of a weapon as a misdemeanor were lesser included concurrent counts to robbery in the first degree (see People v Pyles, 44 AD2d 784). The reversal and dismissal of the grand larceny and weapon counts do not affect the validity of the robbery conviction (see People v Mulligan, 29 NY2d 20, 24; People v Chestnut, 26 NY2d 481, 491-492). Study of the record discloses that the trial court did not err in refusing to declare a mistrial following the opening remarks by counsel for codefendant James Williams. No reference in these remarks was made to defendant-appellant Rosa and no damaging comparison was drawn between Williams’ willingness to testify and Rosa’s failure to do so. The remarks were imbued with the denial of culpability on Williams’ part and no attempt was made to cast Rosa as guilty. Further, even assuming some error in these remarks by counsel, the trial court immediately issued curative instructions which served to minimize any possible prejudice to defendant-appellant. The remaining contentions advanced by defendant Rosa have been examined and found to be without merit. Concur —Kupferman, J. P., Lupiano, Lane, Nunez and Lynch, JJ.

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Bluebook (online)

51 A.D.2d 923, 381 N.Y.S.2d 88, 1976 N.Y. App. Div. LEXIS 11608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rosa-nyappdiv-1976.

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